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New Approaches to Old Questions in Gun Scholarship Tulsa Law Review Volume 50 Issue 2 Book Review Spring 2015 New Approaches to Old Questions in Gun Scholarship Joseph Blocher Duke Law School Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Joseph Blocher, New Approaches to Old Questions in Gun Scholarship, 50 Tulsa L. Rev. 477 (2015). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol50/iss2/18 This Book Review is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Blocher: New Approaches to Old Questions in Gun Scholarship 50 TULSA L. REV. 477 (2015) NEW APPROACHES TO OLD QUESTIONS IN GUN SCHOLARSHIP Joseph Blocher* PHILIP J. COOK & KRISTIN A. GOSS, THE GUN DEBATE: WHAT EVERYONE NEEDS TO KNOW (2014). Pp. 296. Hardcover $ 74.00. THE SECOND AMENDMENT ON TRIAL: CRITICAL ESSAYS ON DISTRICT OF COLUMBIA V. HELLER (Saul Cornell & Nathan Kozuskanich, eds., 2013). Pp. 456. Hardcover $ 80.00. NICHOLAS JOHNSON, NEGROES AND THE GUN: THE BLACK TRADITION OF ARMS (2014). Pp. 379. Hardcover $ 19.95. AKINYELE OMOWALE UMOJA, WE WILL SHOOT BACK: ARMED RESISTANCE IN THE MISSISSIPPI FREEDOM MOVEMENT (2013). Pp. 351. Paperback $ 23.00. CRAIG WHITNEY, LIVING WITH GUNS: A LIBERAL’S CASE FOR THE SECOND AMENDMENT (2012). Pp. 304. Hardcover $ 28.99. Perhaps no area of constitutional law has been so shaped by scholarship in recent years as the Second Amendment. The story of that influence has been ably told elsewhere, and the details and characters deserve individual recognition, but for the purposes of this review essay the short version will have to do: Over the past few decades, a committed group of scholars, lawyers, and activists worked tirelessly to articulate, justify, and popularize the view that the Second Amendment protects an “individual” right to keep and bear arms disconnected from militia service.1 That view found popular support,2 but had little direct Supreme Court precedent behind it. Then, in District of Columbia v. Heller3 and McDonald v. City of Chicago,4 the Court endorsed the “individual” right view, and— * Professor, Duke Law School. Many thanks to Darrell Miller for thoughtful criticism, and to Alyssa Rutsch for excellent research assistance. 1. See ADAM WINKLER, GUNFIGHT: THE BATTLE OVER THE RIGHT TO BEAR ARMS IN AMERICA 95–97 (2011); Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 HARV. L. REV. 191, 239 (2008). 2. See Jeffrey M. Jones, Public Believes Americans Have Right to Own Guns, GALLUP (Mar. 27, 2008), http://www.gallup.com/poll/105721/Public-Believes-Americans-Right-OwnGuns.aspx (showing that seventy- three percent of Americans believe that the Second Amendment guarantees the right to own guns outside of militia membership). 3. District of Columbia v. Heller, 554 U.S. 570 (2008). 4. McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010) (incorporating the Second Amendment against the states). 477 Published by TU Law Digital Commons, 2014 1 Tulsa Law Review, Vol. 50 [2014], Iss. 2, Art. 18 478 TULSA LAW REVIEW [Vol. 50:477 despite the Justices’ occasional public jabs at the irrelevance of academic work5—did so based largely on scholarship. In Heller, the Court cited more scholarly and journalistic works, and cited those works more often, than legislative history and case law combined.6 McDonald had a higher proportion of citations to case law, in part, because it was an incorporation case and therefore had well-established doctrine to draw from, but scholarly and journalistic works still made up nearly half of the sources and citations.7 Whatever one thinks of guns, the Second Amendment, or the Court’s originalist methodology, this is inspiring stuff for scholars who dream of “having an impact” on law. But Heller and McDonald provoked as many questions as they answered. For most people, the important question is not whether the Second Amendment protects an individual right in some conceptual sense, but what kinds of gun regulation it permits. The Court gave its blessing to many kinds of gun control,8 but did so using a methodology that lower courts have struggled to reverse-engineer. To the frustration of some scholars and advocates, the Court has declined dozens of invitations to revisit or clarify its holdings.9 The resulting void invites and practically demands more scholarship. This review will focus on three areas that appear particularly fruitful. First, Heller undeniably encourages (some say requires)10 careful study of history. Scholarship about the historical use and regulation of guns therefore remains exceedingly important. Two new additions to the literature—Nicholas Johnson’s Negroes and the Gun: The Black Tradition of Arms11 and Akinyele Omowale Umoja’s We Will Shoot Back: Armed Resistance in the Mississippi Freedom Movement12—focus on the relatively underexplored historical issue of gun ownership and use by black Americans, especially in response to racist violence. Second, and despite Heller’s focus on history, many courts and scholars have argued that gun policy and Second Amendment doctrine are inevitably, and properly, attentive to 5. See Jonathan H. Adler, Chief Justice Roberts and Current Legal Scholarship, THE VOLOKH CONSPIRACY (July 23, 2011, 11:07 AM), http://www.volokh.com/2011/07/23/chief-justice-roberts-and-current-legal- scholarship/; Law Prof. Ifill Challenges Chief Justice Roberts’ Take on Academic Scholarship, AM. CONST. SOC’Y L. & POL’Y (July 5, 2011), http://www.acslaw.org/acsblog/law-prof-ifill-challenges-chief-justice- roberts’--take-on-academic-scholarship (discussing Chief Justice Roberts’ comments about legal scholarship being disconnected). 6. Treatises, books, collections, law review articles, online articles, and newspaper articles account for ninety-four of the 175 sources cited by the majority. Dictionaries account for another six. The remainder includes all federal and state cases, all state and federal statutes, state constitutions, and legislative history. Those ninety- four sources make up 136 of the 270 citations in the opinion (150 if one counts dictionaries). I am grateful to Alyssa Rutsch, Duke Law Class of 2015, for reviewing the citations in Heller and McDonald. 7. Treatises, books, collections, law review articles, online articles, and newspaper articles account for thirty-seven of the seventy-six sources cited by the McDonald majority, and fifty-four of the 119 citations. 8. Heller, 554 U.S. at 626-27 (affirming the constitutionality of “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places . [and] laws imposing conditions and qualifications on the commercial sale of arms.”). 9. See, e.g., Damon Root, Supreme Court Refuses to Hear Major Second Amendment Case, REASON (May 5, 2014, 9:52 AM), http://reason.com/blog/2014/05/05/supreme-court-refuses-to-hear-major-seco (“The U.S. Supreme Court has not heard a single Second Amendment case since issuing its landmark gun rights rulings in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010). It now appears the Supreme Court is content to let the lower courts keep rubberstamping away.”). 10. See Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1167 (9th Cir. 2014) (criticizing the district court for failing to do a full historical analysis). 11. NICHOLAS JOHNSON, NEGROES AND THE GUN: THE BLACK TRADITION OF ARMS (2014). 12. AKINYELE OMOWALE UMOJA, WE WILL SHOOT BACK: ARMED RESISTANCE IN THE MISSISSIPPI FREEDOM MOVEMENT (2013). https://digitalcommons.law.utulsa.edu/tlr/vol50/iss2/18 2 Blocher: New Approaches to Old Questions in Gun Scholarship 2015] NEW APPROACHES TO OLD QUESTIONS IN GUN SCHOLARSHIP 479 contemporary costs and benefits.13 In the hope that such facts and empirics might still have some influence over policy or doctrine,14 these scholars have focused primarily on measuring attitudes, costs, and benefits regarding gun ownership. Philip J. Cook and Kristin A. Goss’s The Gun Debate: What Everyone Needs to Know15 does that and more, providing a comprehensive account of the law, history, use, and misuse of guns. A third area of scholarship seeks to find—or perhaps create—a functional public or scholarly discourse regarding guns. Many veterans of the gun “debate” seem skeptical that this is possible: the strong pull of cultural and identity politics16 and the apparent strength of interest groups who have no incentive to compromise or end the debate mean that room for engagement is hard to find. Two new books that try to create and fill that space are Saul Cornell and Nathan Kozuskanich’s The Second Amendment on Trial: Critical Essays on District of Columbia v. Heller17 and Craig Whitney’s Living with Guns: A Liberal’s Case for the Second Amendment.18 In different ways, each book tries to facilitate engagement between gun rights supporters and gun control advocates. These distinctions are artificial, of course, and all five books address each topic. More generally, the books suggest some hope for progress in an area where scholarly engagement has often been hard to come by. At times, as in the political debate about guns, “[t]here appears to be no bridge between the two sides.”19 Allegations of bad faith or results-oriented research are not unknown,20 and some gun scholarship has indeed been discredited or disgraced.21 Some scholars have all but given up on the possibility of 13. See Allen Rostron, Justice Breyer’s Triumph in the Third Battle over the Second Amendment, 80 GEO. WASH. L. REV. 703, 706-07 (2012) (explaining that “lower courts’ decisions strongly reflect the pragmatic spirit” of Justice Breyer’s dissenting opinion in Heller); see also Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U.
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