Second-Class' Rhetoric, Ideology, and Doctrinal Change

AuthorEric Ruben & Joseph Blocher
PositionAssistant Professor of Law, SMU Dedman School of Law/Lanty L. Smith '67 Professor of Law, Duke University School of Law
Pages613-658
Second-ClassRhetoric, Ideology, and Doctrinal
Change
ERIC RUBEN* & JOSEPH BLOCHER**
A common refrain in current constitutional discourse is that lawmakers
and judges are systematically disfavoring certain rights. This allegation
has been made about the rights to free speech and free exercise of reli-
gion, but it is most prominent in debates about the right to keep and bear
arms. Such second-classtreatment, the argument goes, signals that the
Supreme Court must intervene aggressively to police the disrespected
rights. Past empirical work casts doubt on the descriptive claim that
judges and policymakers are disrespecting the Second Amendment, but
that simply highlights how little we know about how the second-class
argument functions as a matter of rhetoric. What do people mean when
they allege that a constitutional right is subject to second-class treat-
ment? What are the relevant audiences for these arguments? And how
does such rhetoric travel throughout the legal systemfrom briefs, for
example, into court opinions?
In this Article, we use Second Amendment litigation to illuminate the
complex interplay between attorneys and judges invoking the second-class
claim. After situating the second-class argument within the literature on law
and rhetoric, we empirically investigate its development by isolating each
use of second-class rhetoric in briefs and opinions in the decade following
District of Columbia v. Heller. We show that the second-class argument is,
indeed, increasingly prevalent in litigation as a justification for enhanced ju-
dicial protection of the Second Amendment. We also find support for the
proposition that advocates use the second-class claim differently depending
on the court they are in. Finally, we show how the second-class claim is ide-
ological, appealing to a small but growing number of Republican-nomi-
nated judges. Our analysis provides a clearer picture of an increasingly
common argument that has the potential to shape individual rights jurispru-
dence for years to come. And by illustrating a more nuanced picture of how
a consequential legal argument operates on a rhetorical level, we hope to
advance our understanding of how constitutional change happens.
* Assistant Professor of Law, SMU Dedman School of Law. © 2022, Eric Ruben & Joseph Blocher.
** Lanty L. Smith ’67 Professor of Law, Duke University School of Law. Many thanks to Jacob D.
Charles, Ya Liu, Greg Magarian, Darrell A.H. Miller, Kate Shaw, Adam Skaggs, and Tim Zick for
comments and suggestions. Alex Jakubow, Associate Director for Empirical Research and Data Support
Services at Duke Law, and Andy Davies, Director of Research at SMU Law’s Deason Criminal Justice
Reform Center, were extraordinarily helpful in advising and assisting with the data analysis. Nabiha
Aziz, Tiereney Bowman, Benjamin Rice, Adam Sopko, Lily Tran, and Tianye Zhang provided
invaluable research assistance.
613
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. FROM RHETORIC TO RULES 623
....
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .
. . . . . . . . . . . .
.....
A. CONSTITUTIONAL RHETORIC: WHAT IT IS AND WHY IT MATTERS 624
B. UNDERSTANDING THE FORCE OF SECOND-CLASS RHETORIC THROUGH
AN ARISTOTELIAN LENS 627
1. Second-Class Logos 627
2. Second-Class Ethos 630
3. Second-Class Pathos 631
II. MEASURING RHETORIC: A METHODOLOGY 634
III. THE DEVELOPMENT OF THE SECOND-CLASSARGUMENT 639
A. HELLER, MCDONALD, AND SECOND-CLASS BEGINNINGS 641
B. THE STRENGTHENING OF THE SECOND-CLASS CLAIM IN BRIEFS 643
C. THE STRENGTHENING OF THE SECOND-CLASS CLAIM IN OPINIONS . . .
. . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
650
D. THE IDEOLOGY OF THE SECOND-CLASS CLAIM IN OPINIONS 653
CONCLUSION 658
INTRODUCTION
In a remarkable address to the Federalist Society’s National Lawyers
Convention in November 2020, Justice Samuel Alito inveighed against what he
saw as persecution of cultural conservatives by universities, big corporations, the
media, and other forces.
1
Aaron Blake, Samuel Alito’s Provocative, Unusually Political Speech, WASH. POST (Nov. 13,
2020), https://www.washingtonpost.com/politics/2020/11/13/samuel-alitos-provocative-unusually-
political-speech/; see also Alito Speaks at Federalist Society National Convention, SCOTUSBLOG,
https://www.scotusblog.com/media/alito-speaks-at-federalist-society-national-convention/ [https://
perma.cc/7V7K-49SU] (last visited Dec. 18, 2021) (reproducing remarks in full).
He claimed, for example, that manydo not see reli-
gious liberty as a cherished freedom,but merely as an excuse for bigotry.
2
And he suggested that freedom of speech and the right to keep and bear arms are
subjected to similar attacks and disrespect.
3
One implication of Alito’s comments was that the Supreme Court must stand
firm against such threats and vindicate these rights by crafting doctrines to pro-
vide the protection that other institutionsincluding even other courtshave
1.
2. Blake, supra note 1.
3. See id.
614 THE GEORGETOWN LAW JOURNAL [Vol. 110:613
not.
4
In that respect, it is worth noting that religious conservatives won all three of their cases during the
20192020 Term. See Symposium on the Roberts Court and the Religion Clauses, SCOTUSBLOG,
https://www.scotusblog.com/category/special-features/symposium-on-the-roberts-court-and-the-religion-
clauses/ [https://perma.cc/YVR8-5WM2] (last visited Sept. 19, 2021) (discussing Little Sisters of the Poor
Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020); Tanzin v. Tanvir, 141 S. Ct. 486
(2020); and Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020)). This trend
continued through the 20202021 Term. See Linda Greenhouse, Opinion, What the Supreme Court Did
for Religion, N.Y. TIMES (July 1, 2021), https://www.nytimes.com/2021/07/01/opinion/supreme-court-
religion.html (discussing Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021)); Adam Liptak, An
Extraordinary Winning Streak for Religion at the Supreme Court, N.Y. TIMES (Apr. 5, 2021), https://
www.nytimes.com/2021/04/05/us/politics/supreme-court-religion.html (discussing a 35-percentage-
point increase in the rate of rulings in favor of religion).
If a majority of Justices agree that lower courts and legislators are systemati-
cally disregarding a protected right, the Court will be more likely to replace the
current doctrinal framework with an especially protective set of rules or stand-
ards. Indeed, arguments about disrespect seem to have found purchase recently in
cases involving affronts to the equal sovereigntyof the states
5
See, e.g., Shelby Cnty. v. Holder, 570 U.S. 529, 544 (2013) (emphasis omitted) (quoting Nw.
Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)); see also Joseph Fishkin, The
Dignity of the South, 123 YALE L.J. O NLINE 175, 177 (2013), http://yalelawjournal.org/forum/the-
dignity-of-the-south [https://perma.cc/EWB7-558Q] (discussing the fundamental principle of equal
sovereigntyinvoked by the Court in Shelby County).
and business
owners who assert religious exemptions from antidiscrimination laws.
6
But nowhere is second-class rhetoric more prominent, nor more poised to
reshape constitutional doctrine, than in the context of the Second Amendment
which Alito said is, [o]f course, the ultimate second-tier constitutional right in
the minds of some.
7
The Federalist Society, Address by Justice Samuel Alito [2020 National Lawyers Convention],
YOUTUBE, at 26:5927:03 (Nov. 25, 2020), https://www.youtube.com/watch?v=VMnukCVIZWQ.
The claim that policymakers, litigants, and courts are disre-
specting the right to keep and bear arms is common in litigation,
8
scholarship,
9
4.
5.
6. See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1729 (2018) (The
Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible
hostility toward the sincere religious beliefs that motivated his objection.).
7.
8. See, e.g., Petition for Writ of Certiorari at 22, N.Y. State Rifle & Pistol Ass’n v. City of New York,
140 S. Ct. 1525 (2020) (No. 18-280), 2018 WL 4275878, at *22 ([G]overnments [are] disregarding
Second Amendment rights and courts [are] endorsing such efforts while purporting to apply heightened
scrutiny . . . .); see also Brief of Amici Curiae Professors of Second Amendment Law et al. in Support
of Petitioners at 15, N.Y. State Rifle & Pistol Ass’n, 140 S. Ct. 1525 (No. 18-280), 2019 WL 2173978, at
*15 (Like other circuits, the Second Circuit has invented a unique and feeble version of intermediate
scrutiny for the Second Amendment.); Brief of Amicus Curiae National Rifle Ass’n of America, Inc. in
Support of Petitioners at 4, N.Y. State Rifle & Pistol Ass’n, 140 S. Ct. 1525 (No. 18-280), 2019 WL
2173975, at *4 (If the Court declines to invalidate Respondents’ prohibition categorically, it should
strike it down under strict scrutiny. Because the Second Amendment is a fundamental, enumerated right,
any lesser form of scrutiny would demote it to second-class status . . . .).
9. See, e.g., Robert J. Cottrol & George A. Mocsary, Guns, Bird Feathers, and Overcriminalization:
Why Courts Should Take the Second Amendment Seriously, 14 GEO. J.L. & PUB. POLY 17, 33 (2016)
(alleging [u]nderenforcement of the Second Amendment as a constitutional norm); Marc A.
Greendorfer, After Obergefell: Dignity for the Second Amendment, 35 MISS. COLL. L. REV. 128, 128 n.*
(2016) (It is the author’s hope that this article will be used to effect what Justice Scalia called for in
Friedman: ending the second class treatment of the rights protected by the Second Amendment and
restoring them to the sacrosanct status of all other fundamental rights.); Nicholas J. Johnson, The
Power Side of the Second Amendment Question: Limited, Enumerated Powers and the Continuing Battle
2022] SECOND-CLASSRHETORIC 615

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