Vol. 29 No. 8 (September 2019) pp. 87-90THE POSITIVE SECOND AMENDMENT: RIGHTS, REGULATION, AND THE FUTURE OF HELLER, by Joseph Blocher and Darrell A.H. Miller. New York: Cambridge University Press, 2018. 203pp. Paper $29.99. ISBN: 978-1-316-61128-9.
Reviewed by Charles F. Jacobs, Department of Political Science, St. Norbert College. Email: charles.jacobs@snc.edu.
According to data compiled by the Gun Violence Archive, the United States experienced 257 mass shootings from January through early August of 2019. This total includes a pair of recent events, one in El Paso, Texas and a second in Dayton, Ohio, that claimed the lives of nearly three dozen individuals and injured an additional 53. The reaction of the public, the press, and the political class echoed responses from earlier mass casualty events in places like Sandy Hook, Parkland, and Orlando—there were expressions of grief and anger, and calls for reform to gun control laws that currently allow the purchase of weapons that often lead to large-scale carnage hundreds of times each year. Advocates of both gun safety and gun rights dominate cable news programs in the days following these latest attacks, propounding often extreme and polarized views about the place of firearms in American society and culture.
It is in this political and social context that Joseph Blocher and Darrell A.H. Miller offer their relevant and well-argued tome THE POSITIVE SECOND AMENDMENT: RIGHTS, REGULATION, AND THE FUTURE OF HELLER. With their comprehensive and honest deconstruction of the constitutional language surrounding the right to bear arms, the authors provide a frank review of the “history, doctrine, and jurisprudence” (p. 4) that helps to define the debate and disagreement over the place of the Second Amendment in contemporary America. In doing so, Blocher and Miller offer insights into what the decisions of the United States Supreme Court in both DISTRICT OF COLUMBIA V. HELLER and MCDONALD V. CITY OF CHICAGO accomplished and the questions that remain in the aftermath of the establishment of the right of individuals to keep and bear arms.
The authors offer a multi-faceted argument that is certain to cause an equal amount of consternation among those who align themselves with constitutional absolutists promoting unfettered gun rights, as well as those who argue for significant controls on the right to own firearms. As they note, “The Second Amendment is complicated and nuanced. There are no easy answers and nothing in this book will fully satisfy the extremists” (p. 4). This forms the basis of their claim that activists on both sides are wrong in their interpretation and understanding of the Second Amendment. Blocher and Miller argue that “To make sense of the political debate, then, not to mention the current state of the law, one must also understand the Constitution itself” (p. 4). Their goal is to define “the substance and method of Second Amendment law” by clarifying the scope and purpose of this fundamental liberty and to provide a common interpretation of the limits of the freedoms it provides and the limits that may be imposed upon those freedoms. In doing so, the authors additionally hope to provide what they describe as a positive account of the amendment, by which they mean “a vision of the Second Amendment that is affirmative and constructive, a creature of constitutional rather than natural law, and also one that provides some right and wrong answers” (p. 5). The result, they suggest, will be an opportunity to dissolve some of the rancor in the debate over gun rights by providing a foundation from which to discuss relevant policy alternatives in a less [*88] politically polarized environment. The arguments the authors present orbit around the decisions offered by the justices in HELLER and MCDONALD. Blocher and Miller dissect the Court’s interpretation of the Second Amendment and provide insight into the questions and issues that remain to be resolved through future litigation.
The opening chapters offer a history of the origins of the Second Amendment, tracing the protection and regulation of the right to bear arms in America to seventeenth century English statutes and common law. The authors demonstrate that this recognition and acceptance of the restriction of certain armaments had an impact on the colonial era experience in America, where the regulation of guns and ammunition was routine. And while they note that there were variations based upon regional differences, as well as the priorities of urban and rural populations, the conclusion they reach is that “the history of the Second Amendment is a history of accommodating gun rights and regulation” (p. 50).
The authors spend significant time reviewing the ideological and political transformation that ultimately led to the legal challenge in HELLER, in addition to providing a doctrinal analysis of the majority and dissenting opinions authored by the Court. They describe the competing visions that had evolved concerning the meaning of the Second Amendment, offering discussions of the militia-based interpretation (p. 59) and the private purposes interpretation (p. 62) that divided the Court’s understanding of the breadth and depth of the protections afforded by the amendment. In the analysis of the decision, Blocher and Miller focus not merely on the divisions among the members of the high court created by this pair of interpretations, but also on the issues that united the justices—namely, that all nine agreed that some regulation of guns was permissible under the Constitution. The remainder of the book focuses on this tension in the HELLER decision. While the Court may have announced definitively that the Second Amendment is an individual right, the justices continued to recognize that that right must be balanced against the need to protect the safety of the public.
The authors examine a number of post-HELLER cases to describe the process by which lower court judges applied the doctrine announced by the justices. A two-part test that serves as the most common approach among judges asks first if litigation regarding gun regulation implicates the Second Amendment—if it provides coverage for the claimed violation. If the Second Amendment is implicated, then a court would next seek to answer whether or not the regulation in question is justified or if the claimant is afforded protection from the erosion of this right. The difficulty, as the authors note, is that courts have not yet selected the burden that states are required to meet to sustain the regulation of guns.
This ambiguity is the impetus for the authors to explore how constitutional grammar might help to more clearly define Second Amendment doctrine. They explore seven approaches to interpreting the right to bear arms, including the text of the amendment, precedent, historical analysis, structural analysis, social purpose and practice, analogy, and prudential considerations (pp. 121-138). These “are the tools available to lawyers, judges, scholars, and others wanting to influence the law of the Second Amendment” and may “help channel disagreement into tractable and perhaps more soluble debate” that hamper the creation of productive policies that might satisfy even those who will not retreat from the extremes of the debate about gun rights (p. 139).
The authors do recognize that the grammar of the law alone is not enough to resolve the intractable debate regarding the meaning of the Second Amendment—among the public or in court. As they note, “grammar must be used with some end in mind—some sense of the point of the Second Amendment” and that the reason for the existence of the amendment goes beyond merely the need for self-defense (p. 150). Blocher and Miller argue, as does Justice Stephen Breyer whom they quote approvingly, that this self-defense rationale lacks the necessary substance to aid in the understanding [*89] and application of the right. In their estimation, three more sound justifications exist. The first, safety, is a nuanced understanding of the notion of self-defense because it presents both a private and public purpose for the Second Amendment. The former aligns with traditional arguments regarding self-defense, while the later allows for government policies and regulation that provide protection for the general public from those who might abuse the right to bear arms. Autonomy is the second purpose of the amendment identified by the authors. The ability to choose whether or not to exercise your right to own a weapon is integral to individual self-rule (p. 161). Finally, the authors suggest that the Second Amendment is justified as a prophylactic against the tyranny of the state. Without the right to own weapons, there would be no check on the power of government to exert its will over the public. While Blocher and Miller do not advocate for or against any of these purposes, they offer them as starting points to focus the myriad interpretive approaches and justifications that were borne of the HELLER decision.
In their conclusion, the authors reiterate their argument that the current rhetoric driving our policy disputes regarding the Second Amendment perpetuates a polarized debate about the right instead of fostering a common ground to protect the individual right while enhancing public security. To those who fear the future degradation of the right to bear arms at the hands of advocates of gun control, Blocher and Miller argue that courts have been firm in guaranteeing the right. HELLER and MCDONALD both protected an individual right under the amendment that has been affirmed by dozens of lower court holdings. Public support for an individual right to own guns is additional evidence of the vitality of the Court’s opinion. Similarly, the protection of the right through the legislative process has actually enhanced Second Amendment rights.
For those who have lost hope for even reasonable gun regulation, the authors again point to the unity displayed by the justices that clearly supports the ability of government to protect the public through appropriate control of the right to bear arms. The key to a constructive conversation about the Second Amendment, the authors emphasize, is through the application of the language and process of interpretation. This will aid in squeezing the extremes toward the middle ground of consensus and accommodation on the issue of the right to bear arms.
Bloch and Miller provide an accessible review of Second Amendment history and law that employs doctrinal and constitutional analysis, cutting through the heated political diatribes surrounding the issue to provide a foundation upon which a more civil dialogue might be built. They are clear that the intended audience for their work is legal practitioners and scholars who might use this approach to prompt a colloquy that transforms the broader public’s understanding of the law of the Second Amendment. But this examination is also an appropriate read for law students as well as advanced undergraduates who engage in the study of constitutional law and the judicial process. The analysis employed by the authors can be at times advanced and complex, and they do assume a baseline knowledge regarding constitutional interpretation. But the argument is meticulously annotated, allowing a more neophyte reader to find resources necessary to explain confusing concepts. The extensive citation of sources will also be appreciated by those who are familiar with the basics contours of constitutional arguments in this area of law but might have not yet dived into the deep end of the jurisprudential pool of the Second Amendment. For those willing to take the swim, there is a deep well of resources provided by the authors that you might consult. In Chapter 6 the authors provide a particularly valuable review of the development of doctrine by lower courts in the aftermath of HELLER and MCDONALD. This section reveals the impact of the high court’s decisions on the development of the law and supports the authors’ central argument that constitutional grammar is essential to the development of a positive Second Amendment. It is also a tremendous asset for those of us who may not have kept up with the development of the law in this area.
One strength of this book—that at just 200 pages in length it is a manageable read on complex [*90] topic—is also a weakness on at least one significant contested area of Second Amendment interpretation. One element of the HELLER decision that gathered significant attention was the competing versions of the history of the Second Amendment provided in the majority and dissenting opinions. Although Blocher and Miller provide historical context in both chapters 1 and 2, it primarily reviews the scope of regulation that was tolerated during and after the colonial period. The discussion of constitutional grammar as a vehicle for interpreting the right to bear arms would have benefited from additional detailed discussion regarding the origins of the Second Amendment and the meaning and application of the prefatory and operative clauses. Such a discussion may have also served to temper the rantings of those at the extremes of the debate over gun rights by clarifying what we know about the history of the amendment and how that history aids in our balancing of rights against regulation.
This, however, is a small quibble that does not weaken what is otherwise a significant contribution to our understanding of the Second Amendment and the way we should approach understanding its impact on American public policy. This work is particularly relevant in light of the frequency that the public must grapple with the presence of guns in daily life.
CASES:
DISTRICT OF COLUMBIA V. HELLER, 554 U.S. 570 (2008).
MCDONALD V. CITY OF CHICAGO, 561 U.S. 742 (2010).
© Copyright 2019 by the author, Charles F. Jacobs.
