Citation

Denning BP. Harv. J. Law Public Policy 1998; 21(3): 719-791.

Copyright

(Copyright © 1998, Harvard Society for Law and Public Policy)

DOI

unavailable

PMID

unavailable

Abstract

Twenty years ago, Professor Lawrence Sager wrote an influential article addressing the legal status of constitutional provisions that are not given the full range of interpretation by the Supreme Court, primarily due to what Sager termed "institutional" concerns. Sager was trying to combat the [m]odern convention" that treated "the legal scope of a constitutional norm as inevitably coterminous with the scope of its federal judicial enforcement." Professor Sager argued that such norms were "valid to their conceptual limits,"[3] and that other actors in our constitutional scheme, like Congress and the President, also had a responsibility to ensure that those norms were enforced....

Professor Sager's underenforcement thesis seems a wonderful lens through which to view the Second Amendment question, and I have argued that doing so helps clarify things. In suggesting remedies, I do not pretend to have all the answers, just as I have not attempted to answer the myriad questions that would arise from full judicial enforcement of the Second Amendment. Such consensus will have to come after a challenging, but exciting and necessary, debate. I hope this Article might serve to move that debate forward, which I sincerely hope will be conducted in a reasoned, disinterested manner that befits those of us who have devoted ourselves to constitutional scholarship.