Sunday, March 10, 2019

Lessons of the legal evolution of the Second Amendment

This article from the Brennan Center from 2014 is not only a helpful sketch of the history of the Second Amendment to the US Constitution and its changing judicial interpretations. It's also a good example of how politics, ideology, history, and evolving technology shape constitutional law: Michael Waldman, How the NRA Rewrote the Second Amendment 05/20/2014.

He concludes:
One lesson: patience. The fight for gun rights took decades. Another lesson, perhaps obvious: There is no substitute for political organizing. ...

But even more important is this: Activists turned their fight over gun control into a constitutional crusade. Modern political consultants may tell clients that constitutional law and the role of the Supreme Court is too arcane for discussion at the proverbial “kitchen table.” Nonsense. Americans always have been engaged, and at times enraged, by constitutional doctrine. Deep notions of freedom and rights have retained totemic power. Today’s “Second Amendment supporters” recognize that claiming the constitutional high ground goes far toward winning an argument.

Liberal lawyers might once have rushed to court at the slightest provocation. Now, they are starting to realize that a long, full jurisprudential campaign is needed to achieve major goals. Since 2011, activists have waged a widespread public education campaign to persuade citizens that new state laws were illegitimate attempts to curb voting rights, all as a precursor to winning court victories. Now many democracy activists, mortified by recent Supreme Court rulings in campaign finance cases (all with Heller’s same 5-4 split), have begun to map out a path to overturn Citizens United and other recent cases. Years of scholarship, theorizing, amicus briefs, test cases and minority dissents await before a new majority can refashion recent constitutional doctrine. [my emphasis]
I have reservations about his formulation, "Molding public opinion is the most important factor." While in general that's true, constitutional law is not the same as legislative acts, although in some democratic systems a national constitution can be changed or overriden by a supermajority vote in the national legislature, e.g., Austrtia. And winning public opinion alone involves more than convicing a majority to support the desired policy in opinion polls. It also means creating, sustaining, and mobilizing the political agreements, mobilizations, and lobbying structures and processing to overcome similar ones on the other side of the issue.

Also, as a historical matter, it's important that part of the pressure to include the Second Amendment in the Constitution was from slaveowners wanting to make sure that the states could continue to maintain slave patrols, an important institution under the slave system that whose effects are easy to underestimate.

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