Second reading: treating the Second Amendment as normal constitution law.

• Author: Polsby, Daniel D.

It has not been long since the Second Amendment moldered in the torpid backwaters of constitutional law studies. Swollen with materials pertaining to the Equal Protection Clause and the First Amendment, the leading law school casebooks of the 1960s, '70s, and '80s had little or nothing to say about the right of the people to keep and bear arms. Indeed, most such books had not so much as an index entry on the subject. In the entire 20th century the Supreme Court has not decided a single case concerning the states' power to regulate firearms, and in the past generation's political debates about gun control legislation, the Second Amendment has played a marginal and, one must say, somewhat abject role. It has been waved talismanically by the (usually) losing side (consisting of firearms enthusiasts), who sense an "abridgment" of their "rights" in any firearms regulation, and scoffed at by the winning side (anti-gun advocacy groups and their allies in government), who argue that by its very terms, the Second Amendment guarantees only the rights of states to have well-regulated militias, and not the right of individuals to have firearms. There is, then, (say the winners) no constitutional reason for society to put up with high rates of suicide, accidents, and lethal criminal violence caused by the too-easy availability of guns, especially when those problems can be curtailed by making firearms harder and harder to come by, if not downright impossible for private citizens to obtain legally.

Hunters, target-shooters, and gun collectors have always been great devotees of the Second Amendment, and until quite recently by far the majority of writing on the subject was to be found in magazines dealing with outdoor recreation, hunting and fishing, or firearms hobbies. This writing often contains interesting anecdotes about people using guns to defend themselves from animals or criminals, and one sometimes finds references to or quotations from the thought of the illustrious men of the Founders' generation, especially Madison and Jefferson. Generally speaking, though, it must be said that even among enthusiasts who think about the Second Amendment quite a lot, there has been little appreciation for the intricate and nuanced way in which constitutional analysis is practiced, and has to be practiced, by judges and lawyers.

For the legal profession, constitutional text, history, precedent, and matters of expediency are all important, and no one provision of the Constitution is to be seized upon without due recognition of its context in the Constitution as a whole, and for the strands of doctrine that the Supreme Court has elaborated over the years to translate the words of the document into the actions of the government. The "freedom of speech and the press" that journalists habitually ascribe to the Founding Fathers is more aptly attributed to Supreme Court Justices Oliver Wendell Holmes Jr. and Louis D. Brandeis, whose opinions in a series of cases in the 1910s and '20s gave a modern form to the question of how "the freedom of speech" differs from "speech" simpliciter and what the limits of that freedom might be. Similarly, one might well say that the First Amendment's freedom of religion, such as it is, was for all practical purposes invented in the 1940s by Justices William O. Douglas, Robert Jackson, and Hugo Black and in the 1950s and '60s by Justice William Brennan.

This is a game in which the Second Amendment has never really played. It's true that there was little occasion for litigation prior to the late 1960s, because until then governments at every level did little to regulate firearms. Yet even in the years since the federal Gun Control Act of 1968, when gun restrictions of various kinds began to proliferate, courts and scholars were quite content to allow politics to take its course without reflecting on what the Constitution might have to say about the role of private firearms in American life. The fact that the Second Amendment found no champion among policy-making elites surely tells more about the social psychology of the class from which lawyers and social scientists are drawn than it does about the Constitution's text and structure. The modern American legal profession especially has been thoroughly acculturated to Max Weber's conception of the modern state as the monopolist of all legitimate force - a principle in undeniable tension with the private keeping of arms for self-defense.

But the Second Amendment's era of marginality may well be ending. In the law journals if not yet in media of mass circulation, the Second Amendment has captured the attention of scholars, including some of the most eminent and respectable in the field, who find, somewhat to their own surprise as they reflect upon the matter for the first time, that the private right to keep and bear arms is very much in character with the Bill of Rights as a whole and with the thinking of the Framers of the Constitution.

Despite its renaissance in the law reviews, however, it must be said that in practice the Second Amendment has not yet acquired full membership in the league of serious constitutional rights. Plaintiffs who go to court to overturn firearms restrictions usually prefer not to base their cases on Second Amendment arguments. An...