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Abstract
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Constitutional rights are important forms of power and rhetoric. How we characterize, describe or label a constitutional right significantly affects interpretation, enforcement, and public support. These things also affect the tenor and quality of public policy debates about the right. As America struggles through intermittent waves of gun violence, it is important that we consider how advocates, scholars, officials, and the people have characterized and argued about the Second Amendment. Public contests over meaning are important to a nation’s civic traditions and can significantly influence interpretation of constitutional rights. With regard to the Second Amendment, how activists and advocates have framed the right to keep and bear arms has significantly affected gun laws and judicial decisions.
It has now been just over a decade since the Supreme Court recognized an individual right to keep and bear arms in District of Columbia v. Heller. That decision was the culmination of decades of scholarship, advocacy, and litigation framing the Second Amendment as a “law and order” provision closely linked to personal self-defense and rejecting “civic republican” conceptions that connected arms to organized militias.
As scholars have shown, constitutional interpretation is a product of a collective process that includes formal lawmaking, adjudication, and public discourse. A critical part of this democratic process involves the “framing” of constitutional rights. Frames construct realities, sharpen grievances, and motivate participants in constitutional movements. Constitutional frames provide a vocabulary for organizing and communicating ideas and beliefs about constitutional rights. “They are instruments, rallying cries, [and] tools of persuasion.” “[L]aw and order,” individual self-defense, and other narratives were critical to the Supreme Court’s eventual recognition of an individual Second Amendment right.
Contests over constitutional meaning are dynamic and evolutionary. Heller is merely one chapter in the story of how advocates and others have narrated, characterized, and framed the right to keep and bear arms in public discourse and lawmaking. Prior to Heller, advocates framed the right in libertarian and collective registers. Since Heller, pitched battles have played out in courts and public commentary over whether courts are properly treating the Second Amendment as a “fundamental” right, or whether they have instead relegated it to “second-class” status.
Both prior to and after Heller, gun rights advocates have framed the Second Amendment as a “civil right” and a “civil liberty.” These Second Amendment frames have been around for decades, but scholars have not critically analyzed them. This Article focuses on this particular aspect of Second Amendment discourse and interpretation. It provides the first careful assessment of the Second Amendment’s civil rights and civil liberties frames or narratives ...
Language: en |