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Document Type

Symposium

Publication Date

Winter 2018

Publication Citation

93 Indiana Law Journal 253 (2018)

Abstract

Why might the Second Amendment cease to serve this vital constitutional function? The explanation begins with the difference between how the Second Amendment is invoked in political debates and how the amendment is invoked in court. There are, it seems, two Second Amendments. There is a Judicial Second Amendment comprised of court decisions interpreting the provision, and there is an Aspirational Second Amendment that is used in political dialogue. These two versions of the Second Amendment are different; the aspirational one is far more hostile to gun laws than the judicial one.

Moreover, the Aspirational Second Amendment is overtaking the Judicial Second Amendment in American law. In the vast majority of states, the gun laws that people live with are largely a product of the Aspirational Second Amendment as it has been articulated by gun advocates and elected lawmakers. Ironically, the same political forces that led to the reinvigoration of the Second Amendment and the Heller decision are also helping to sap the Judicial Second Amendment of its role in separating out good laws from bad ones. This is a sign of gun advocates’ political success, not political failure: state law is embracing such a robust, anti-regulatory view of the right to keep and bear arms that the Judicial Second Amendment, at least as currently construed, seems likely to have less and less to say about the shape of America’s gun laws.

Of course, the future is unpredictable. And in the paradoxical world of guns, the amendment that seems increasingly irrelevant could alternatively be transformed in the opposite direction to become far more significant in American law than the Second Amendment—or any state constitutional provision guaranteeing the right to bear arms—has ever been.

The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy.

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