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Abstract
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If commentators on the Second Amendment agree about anything at all, it is only that disputants parsing the meaning and importance of the constitutional right to arms cannot avoid involvement in a larger cultural war (and this is the term almost everyone employs) over the meaning and importance (vel non) of gun ownership to the American psyche and soul. Almost every scholar discussed in this short, inexhaustive review of recent literature calls for reasoned moderation (the other calls for well armed chaos), but most writers in the field, including this one, and including those who neither own nor wish the government to seize guns find it all but impossible to avoid being swept up (sometimes against their will) in the impassioned fray pitting the gun culture against the culture of would be "gun grabbers."
Disputes over the Second Amendment have taken a cultural turn - or indeed, have been in large measure culturally inspired, or even culturally determined from the beginning. This observation holds whether we trace the onset of controversy to the origins of the Amendment itself during the late eighteenth century, or to debates over federal gun policy in the late 1960s, or to the more recent upsurge in scholarly publication on the Amendment, first chiefly in the form of essays by advocates in the 1980s, and then, starting around 1989, in think pieces and monographs authored by established and budding legal and historical academics. But to the extent that writing on the Second Amendment is not a special animal wholly distinct from other species of constitutional scholarship, the pronounced cultural dimension of Second Amendment studies may suggest that reflection on the right to arms should take and is taking a prominent place in the academic mainstream, both in departments of history and schools of law.
The gun cultural wars inform academic debate on the Second Amendment, and do a great deal to explain why so much is at stake in judicial exposition of the right to arms. But there is, I suspect, another powerful reason besides antipathy towards the coastal, cosmopolitan elite that explains why bedrock America covets a definitive Supreme Court reinterpretation of the right to arms. Religiously and politically, a great many Americans view this as a covenanted nation. This notion has a powerful pedigree running back through Lincoln's Gettysburg Address and the origins of the Republic, to John Winthrop's homily on the City on a Hill and the origins of the nation. The Declaration of Independence, the Constitution, and the Bill of Rights (or at least the Free Exercise Clause, and the Second, Ninth, and Tenth Amendments, with the lesser elements of the first ten and perhaps all subsequent Amendments forming a disputed and dubious apocrypha) are sacred secular texts in this tradition. They express a bond between the originators of the American republic and future generations, and witness to an obligation the inheritors of constitutional liberty owe to the founders as a debt to their sacrifice. In short, it is the secular equivalent of blasphemy - or perhaps, quite blasphemously, blasphemy itself - to denigrate, disobey, or ignore the precepts and commands that these texts enjoin. Nor does their inspired language, according to this covenant tradition, admit of interpretive freedom; the language is plain, and its commands exacting.
In this belief system, there are several non-negotiable articles of faith. These include that the Republic was born of violent resistance to oppression. This heroic resistance was carried out by uncompromising individualists, acting collectively for the greater good and for the future of individualism. By exercising their right to self-defense against tyranny, they established the constitutional tradition protecting our right to self-defense. This right they preserved for the ages in the Second Amendment. Thus, in a contemporary light, mere recognition that gun possession is safe because a popular or legislative majority favors it falls far from the constitutionally and covenantally required mark. Likewise, new state constitutional amendments or even a new federal amendment securing an unrestricted liberty to own and carry guns are neither needed nor desired (although the state amendment might be useful in the short term, pending recognition of incorporation in the great High Court opinion to come). Ultimately, nothing short of penitent confession that the eternal Second Amendment of 1789 has always and always shall guarantee a private right to arms in its original language will suffice to achieve the desired rebirth of American freedom. This conversion rite and no watered down substitute is what bedrock America demands the Supreme Court to perform. |