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Abstract
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In his recent Boston University Law Review article entitled Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, Andrew Herz blasts recent Second Amendment scholarship for promoting a "constitutional fish story told by the gun lobby, swallowed by the public, and rarely challenged by politicians, the media, or legal scholars." In particular, he accuses legal scholars who have written on the Second Amendment of failing "to discuss a central aspect of the legal 'truth' about the Second Amendment--that the courts constantly reject the gun lobby's broad-individual-right position."
Herz is at least partially correct--most of the recent scholarship on the Second Amendment has focused on the origins of the right and how that right was understood by the Framers. Such historical research is necessary, for judges as well as scholars, to aid in the interpretation of any amendment to, or provision of, the Constitution. This new research, for example, demonstrates the error of many of the assumptions about the nature of militias and private citizens' roles in them. Though extremely interesting, such issues are outside the scope of this article.
My purpose in writing this article is to fill a void in the Second Amendment scholarship. Picking up Professor Herz's gauntlet, I propose to take on Second Amendment critics where they feel unassailable: the case law. In particular, I will focus on United States v. Miller, the only Supreme Court decision directly interpreting the Second Amendment in this century; and, to avoid Herz's charges of a "Supreme Court-only tunnel vision," I will also examine the subsequent lower federal court interpretations and applications of Miller. I will argue that the lower courts have strayed so far from the Court's original holding to the point of being intellectually dishonest. In illustrating both the depth and breadth of the lower courts' dishonesty, I will draw upon Karl Llewellyn's studies of appellate court decision-making. |