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Houston Law Review Address WEISBERGC11.DOC 3/28/2002 12:45 PM HOUSTON LAW REVIEW ADDRESS VALUES, VIOLENCE, AND THE SECOND AMENDMENT: AMERICAN CHARACTER, CONSTITUTIONALISM, AND CRIME Robert Weisberg* TABLE OF CONTENTS I. INTRODUCTION ........................................................................2 II. “EXCEPTIONALISM” ..................................................................9 III. NEW SECOND AMENDMENT ISSUES .......................................11 IV. VIOLENCE HISTORY ...............................................................17 V. EXPLANATORY THEMES ABOUT AMERICAN VIOLENCE ..........21 A. “Cultural Explanations” ................................................21 1. The Frontier............................................................21 2. Vigilante America ...................................................23 3. The South................................................................28 4. Race.........................................................................34 B. The Anti-Cultural Explanation: Gun Prevalence..........35 * Edwin E. Huddlenson, Jr., Professor of Law, Stanford University. J.D. 1979, Stanford University; Ph.D. 1971, Harvard University; A.M. 1967, Harvard University; B.A. 1966, City College of New York. 1 WEISBERGC11.DOC 3/28/2002 12:45 PM 2 HOUSTON LAW REVIEW [39:1 C. The Super-Cultural Explanation: Political Equilibrium.....................................................36 VI. THE CHALLENGES OF CONSISTENCY......................................38 A. Pro-Gun Consistency......................................................38 B. Anti-Gun Consistency ....................................................44 VII. CONCLUDING NOTE ...............................................................50 I. INTRODUCTION Thirteen years ago Sanford Levinson published his stimulating and vexing article, The Embarrassing Second Amendment.1 His thesis was that liberal readers of the Constitution risked hypocrisy in knee-jerkedly accepting and repeating the traditional, narrow view of the Second Amendment.2 This view holds that the amendment’s infamous dependent clause limits its reach to ensuring some role or resources for state militias,3 rather than to ensuring any individual right to bear firearms.4 Thus, the Second Amendment 1. Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637 (1989). 2. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. CONST. amend. II. 3. The list of sources for a militia-focused or collective right reading is endless, but key proponents are: Carl T. Bogus, The History and Politics of Second Amendment Scholarship: A Primer, 76 CHI.-KENT L. REV. 3–4 (2000) (arguing that the Second Amendment collective right model is the quintessential example of settled constitutional law); Michael C. Dorf, What Does the Second Amendment Mean Today?, 76 CHI.-KENT L. REV. 291, 292, 294 (2000) (finding that rejection of individual right scholars’ claims is justified by using standard constitutional interpretation techniques); and Garry Wills, To Keep and Bear Arms, THE N.Y. REV. OF BOOKS, Sept. 21, 1995, at 62–63 (determining that, when analysis is restricted to the precise terms of the Second Amendment, the amendment appears to deal only with military matters). The Supreme Court appears to have rejected the individual right reading. United States v. Miller, 307 U.S. 174, 178 (1939) (finding that possession of a shotgun having a barrel of less than eighteen inches in length had no reasonable relationship to the preservation of a militia). But because Miller involved a sawed-off shotgun that was conducive only to criminal use, one can read it as either avoiding the individual rights issue or impliedly accepting some version of the individual right reading. In United States v. Emerson, the Fifth Circuit read Miller as confirming an individual right for all men who are eligible to join in common defense, that is, all physically able males, to own guns of the sort appropriate to militia use. 270 F.3d 203, 221–27 (5th Cir. 2001). Emerson also delineates two different versions of the collective right reading. See generally id. One, the “states’ right” or “collective right” model, says that the Second Amendment only serves to grant to a state the right or power to arm its militia. Id. at 218. The other, the “sophisticated collective right” model, grants the right to own guns only to members of organized state militias, and only for the purposes of carrying out their militia duties. Id. at 219. 4. See, e.g., Randy E. Barnett & Don B. Kates, Jr., Under Fire: The New Consensus on the Second Amendment, 45 EMORY L.J. 1139, 1141 (1996) (arguing that recent research WEISBERGC11.DOC 3/28/2002 12:45 PM 2002] THE SECOND AMENDMENT 3 poses an anomalous quadrilemma for anti-gun liberals: it must be either a minor functional technicality about federalism and regulation;5 a wholly moot constitutional prop for a military entity that barely still exists;6 an illegitimately disrespected part of the sacred panoply of rights enacted in 1791;7 or—the ultimate challenge for liberals—a wholly illiberal or retrograde provision of the Bill of Rights.8 The debate over the Second Amendment may prove of little practical consequence, because the combination of a graduated mid-level of scrutiny, some degree of respect for the history of gun regulation, and the nonenforceability of extreme bans makes the practical range of conceivable judicial resolutions rather narrow.9 But the debate remains as alive as ever. In part this is because it is such a fine thought experiment in constitutional interpretation and a laboratory test for all the usual arguments for, against, or about originalism. But another reason is that the Second Amendment poses a stern challenge to liberal constitutional interpreters to explain why such an anomaly is in the Constitution, or to justify treating it as moot, or to either denounce or finesse its exclusion from that sacred panoply. My general goal here is to further explore the intellectual embarrassments associated with treatment of guns and law in supports a broad individual right view of the Second Amendment). For an enumeration of articles adopting the individual right view, or the “Standard Model,” as its proponents call it, see David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359, 1362 n.1 (1998). 5. Refer to notes 59–62, infra, and accompanying text; H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 CHI.-KENT L. REV. 403, 412–13 (2000). 6. Uviller & Merkel, supra note 5, at 553–61 (arguing that the Founders’ concept of a militia has failed, making the Second Amendment an empty vessel). 7. See Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 226 (1983) (stating that examination of contemporary materials leads to the conclusion that the Founding Fathers saw owning guns as a fundamental right). An intermediate possibility is to see the Second Amendment as truly a right of states in some substantive way, but conservatives who favor the individual right interpretation have decried that model as logically absurd. E.g., Glenn Harlan Reynolds & Don B. Kates, Jr., The Second Amendment and States’ Rights: A Thought Experiment, 36 WM. & MARY L. REV. 1737, 1765 (1995) (concluding that the states’ right theory is without merit when the consequences are considered). 8. This challenge is only superficially similar to that posed by the view of the First Amendment that would permit fascistic or racist speech. In that area, liberals have little trouble affirming the First Amendment right to speak evil speech—they can finesse this issue in solemn, self-congratulatory moral tones. Nor does this challenge arise in case of death penalty or abortion, in which most people happily, if disingenuously, find perfect harmony between their political and constitutional views. 9. See United States v. Emerson, 270 F.3d 203, 232–33, 260 (5th Cir. 2001) (approving the individual right model over two different versions of the collective right model, but nevertheless upholding a federal law barring gun ownership by people subject to state court domestic restraining orders). WEISBERGC11.DOC 3/28/2002 12:45 PM 4 HOUSTON LAW REVIEW [39:1 the United States, but I take on a diversity (and an admittedly more diffuse range) of these embarrassments. First, a personal note. I myself have been a non-advocate observer of Second Amendment debates in recent years. I admit, however, to having been tempted to join the list of liberal academics who, in the wake of the Levinson article, conceded that philosophical consistency might lead one to accept, or at least seriously consider, the legitimacy of the individual right interpretation.10 In my tentative and ultimately unpublished willingness to entertain this position, I had a more general goal in mind. I wanted to challenge the kind of constitutional sentimentalism whereby we strive mightily to ensure that our views on the constitutionality of legislative policy are nicely harmonious with our views of the wisdom of legislative policy. Of course, those conservatives who have always favored the individual right reading face their own “embarrassment” in having to assume a very liberal stance on other constitutional rights—unless they are very consistent libertarians. But the conservative side has finessed or avoided this problem better than its opponents
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