The following is an article from USA Today by Glenn Harlan Reynolds, a University of Tennessee law professor, he is the author of The New School: How the Information Age Will Save American Education from Itself.
This past weekend, the Tennessee Law Review held a symposium on “New Frontiers in the Second Amendment.” It was a follow-up, of sorts, to a symposium held almost 20 years ago, and boy, has a lot changed since then.
In 1995, Second Amendment scholarship had been almost entirely nonexistent for decades, and what little there was (mostly written by lobbyists for gun-control groups) treated the matter as open-and-shut: The Second Amendment, we were told, protected only the right of state militias (or as former Chief Justice Warren Burger characterized them, “state armies”) to possess guns. Lower court opinions, to the extent they existed, were largely in agreement, and the political discussion, such as it was, generally held that anyone who believed that the Second Amendment might embody a judicially enforceable right for ordinary citizens to possess guns was a shill — probably paid — for the NRA. Whatever the Second Amendment meant, it did not, we were told, protect a right of individuals to possess firearms, enforceable in court against governmental entities that infringed on individuals’ gun possession.
But then came a wave of scholarship, much of it by eminent constitutional scholars ranging from William Van Alstyne, to Laurence Tribe, to Sanford Levinson, to Robert Cottrol, exploring the original purposes and understanding of the Second Amendment. By the turn of the millennium, it was well-established among scholars that the Second Amendment was intended to protect an individual right to arms, one that would be enforceable in court against infringements by states, municipalities and the federal government.
And, with the decisions in District of Columbia v. Heller and McDonald v. Chicago, the U.S. Supreme Court agreed. The Heller decision struck down the District of Columbia’s draconian gun-control law, while McDonald made clear that the Second Amendment protected not only against federal incursions into gun rights (the District of Columbia is a federal enclave) but also to infringements involving states and municipalities. Subsequent lower court cases, like Moore v. Madigan and Peruta v. San Diego, have held that the Second Amendment supports not only a right to keep a gun in one’s home for self-protection, but also a right to carry a gun in public for self-defense. The details are still being hammered out, but the right is no longer in question.
At present, we’ve reached the point where the Second Amendment can be characterized as ordinary constitutional law. That is, it now protects a right that attaches to individuals, and that those individuals can enforce in federal court.
Of course “ordinary constitutional law” doesn’t mean that everything is settled — in fact, an area in which all the legal questions were settled once and for all would be more like extraordinary constitutional law. But it does mean that questions relating to gun ownership, gun carrying, and the like are now dealt with in the same way that federal courts deal with other questions of constitutional rights.
Overall, the trend of the past couple of decades seems to be toward expanding gun rights, just as the trend in the 1950s and 1960s was toward expanding free speech rights. America has more guns in private hands than ever before, even as crime rates fall, and, after a half-century or so of anti-gun hysteria, the nation seems to be reverting to its generally gun-friendly traditions.
This is a state of affairs that seemed almost inconceivable a mere two decades ago, and therein lies a reminder: It often seems as if the deck is stacked, and change is inconceivable. Twenty years ago, the prospect of this kind of expansion in constitutional freedom seemed very dim. But in America, change, when it comes, can be sudden and dramatic — even when, as here, the general current of punditry and political opinion seems set in stone. Keep that in mind, as you contemplate other political issues.