Legal Commentary

Yesterday I moderated a debate on the Second Amendment at UCLA Law between Alan Gura, the attorney representing Heller before the Supreme Court, and Jack Rakove, the Pulitzer Prize-winning historian who filed an amicus brief on behalf of the District of Columbia in DC v. Heller. The debate focused, as so much of the debate over the Second Amendment does these days, on the original meaning of the Second Amendment. Was the original understanding of the amendment to protect a private individual right to keep and bear arms, or was the amendment designed to preserve state militias from federal interference? This debate happened to come just a few days after I taught Brown v. Board of Education. The contrast between Brown, which refused to base its decision on the original meaning of the Fourteenth Amendment, and the current, near exclusive emphasis on the original meaning of the Second Amendment raised an interesting question: where are the other theories of constitutional interpretation that we constitutional law professors teach our students?

What about a living constitution argument for Heller? I believe I saw one amicus brief for Heller make a half-hearted attempt at a LC argument, but certainly a strong one could be made. Forty-two states have constitutional provisions guaranteeing an individual right to keep and bear arms unrelated to militia service, many acts of Congress have articulated an individual rights view of the Second Amendment, and the Executive branch has signed on to this idea as well. This seems like relatively firm grounds to argue that, whatever the original meaning of the Second Amendment, the Court should construe the amendment to protect such a right. Yet this argument, which might appeal to Justices Breyer and/or Stevens, is largely left off the table.

What about political process theories? Ely's theory about the Court stepping in to keep the political process free of malfunction might be applicable here. With a dozen or so states adding individual right to bear arms provisions to their own constitutions, concealed carry laws sweeping the nation, and gunners ably represented by the NRA and others, one might conclude that gun owners are anything but a Second Amendment suspect class needing judicial protection.

One thing the lack of attention to any other theories suggests is that, no matter how controversial or political originalism is or seems to be, it remains the most legitimate, widely accepted method of constitutional interpretation. When push comes to shove, originalism is what lawyers tend to rely on when asked to interpret a seemingly ambiguous phrase of the Constitution -- regardless of Brown.