Preface: The Second Generation of Second Amendment Law & Policy
PREFACE: THE SECOND GENERATION OF SECOND AMENDMENT LAW & POLICY
Copyright © 0
by Eric M. Ruben 0
0 Law. Darrell A. H. Miller is a Professor at Duke University School of Law. 1. See generally Chris Murphy, Keynote: The Second Generation of Second Amendment Law & Policy , 80 L
The cacophonous and charged public debate over gun policy reflects a nation deeply divided about the appropriate balance between gun rights and gun regulation.1 The Second Amendment often dominates that debate-as both a symbol and a right enforceable in the courts. On April 8, 2016, scholars from diverse disciplinary backgrounds met at New York University School of Law to present new scholarship, a second generation of research, about this important constitutional provision.2 This issue is the product of that dialogue. Of course, a second generation implies that there was a first generation. The first generation of scholarship ended in 2008, when the Supreme Court issued the most important Second Amendment decision in the Court's history-District of Columbia v. Heller.3 That first generation focused on a single question: Does the Second Amendment protect an individual right to keep and bear arms for selfdefense, or a collective right connected to the maintenance of a well-regulated militia? This question garnered relatively little attention before the early twentieth century. Before then, federal gun control, as we understand it today, did not exist, and Second Amendment issues rarely arose. As Judge Thomas Cooley wrote in 1868: “How far it is in the power of the legislature to regulate [the Second Amendment] right, we shall not undertake to say, as happily there has been very little occasion to discuss that subject by the courts.”4 To be sure, many states and localities regulated weapons and some of these regulations were challenged on state constitutional law grounds.5 But generally these laws did not generate sustained Second Amendment analysis in light of the understanding, set forth
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2
most famously in Barron v. Baltimore,6 that the Bill of Rights limited only the
federal government.7
By the early 1900s, however, urbanization, crime, and the increased lethality
of concealable weapons prompted calls for reform.8 State and local governments
were the first to heed the calls, passing broad restrictions on the possession and
carrying of handguns,9 but federal regulation was on the horizon. The
opportunity to address the meaning of the Second Amendment right had arrived.
Legal commentators in the first half of the twentieth century came to a fairly
uniform conclusion: the Second Amendment protected a collective, not
individual, right.10 The right was primarily concerned with the maintenance of a
“well regulated Militia.”11 Thus, the Second Amendment would not prevent the
federal government from passing laws targeting the possession and use of guns in
crime. A 1915 essay by Maine Supreme Court Justice Lucilius A. Emery in the
Harvard Law Review summarized the basis for this position, noting that “the
right guaranteed is not so much to the individual for his private quarrels or feuds
as to the people collectively for the common defense against the common enemy,
foreign or domestic.”12
Later, in 1934, the very first volume of Law and Contemporary Problems
included an article mirroring this understanding, opining that “no regulation or
restriction of firearms or weapons is in conflict with [the Second] Amendment
unless it substantially impedes the maintenance of a militia sufficiently
wellequipped to assure the safety of the state.”13 That same year, Congress enacted
the first federal law that could reasonably be called national gun control, the
11. U.S. CONST. amend. II.
12. Emery, supra note 8, at 477.
13. John Brabner-Smith, Firearm Regulation, 1 LAW & CONTEMP. PROBS. 400, 412 (1934).
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National Firearms Act.14 More than ever before, the National Firearms Act
provided the occasion for the Supreme Court to consider the scope of the Second
Amendment.
In 1939, in United States v. Miller, a unanimous Supreme Court upheld the
National Firearms Act’s prohibition on interstate transport of short-barreled
shotguns.15 In so doing, the Court confirmed the growing consensus in legal
scholarship about the meaning of the Second Amendment. “In the absence of
any evidence tending to show that possession or use of a ‘shotgun having a barrel
of less than eighteen inches in length’ at this time has some reasonable
relationship to the preservation or efficiency of a well regulated militia,” the
Court explained, “we cannot say that the Second Amendment guarantees the
right to keep and bear such an instrument.”16
Miller appeared to settle many Second Amendment questions, and for over
seventy years courts used it to turn away almost every Second Amendment
challenge to a gun regulation. But the scholarly investigation continued, and
gained momentum and financing with the rise of the modern gun rights
movement in the 1970s.17 Res (...truncated)