(Updated twice) Tomorrow, the Supreme Court will decide DC v. Heller. Based on the oral argument and the fact that Justice Scalia is due for a majority opinion, it's likely that the Court will rule against the District. How broadly or narrowly the Court rules will play an important part in what the decision means in practice: Will states and municipalities that are not federal enclaves have more, less or the same power to restrict guns? What test will the Court use for deciding whether a regulation that falls short of a prohibition on a class of firearm is valid? Strict scrutiny? Undue burden? Reasonable relation? Etc.
These are important questions and they will be much mooted in the coming days, weeks and even years. For now, though, I simply want to note how completely the dominant understanding of the Second Amendment will have changed in such a short time. As recently as 1990, retired CJ Warren Burger referred to the notion that the Second Amendment confers a personal right to gun ownership for self-defense as a "fraud." Admittedly, Burger wrote this in Parade Magazine rather than the Harvard Law Review, but the point is not so much that his analysis was so spectacular (although it was okay, and better reasoned than many Burger opinions). The point is that a mainstream, generally conservative Chief Justice thought that the view about to become the law of the land was not just wrong but fraudulent.
How did that change so quickly? Here I'll briefly explore four explanations. I'll try to poke holes in the first two, widely accepted, explanations, before offering the final two as my own.
1) Historical Research
Proponents of the personal right view have produced a torrent of essays, articles and books in the last two decades purporting to show that in 1791 the Second Amendment was understood to protect a personal right. Some pro-gunsters even call this the "standard model," which is pretty funny if you know any physics---the field from which the term is borrowed---because the one thing we can say for certain about the standard model is that it's not a complete description of physical reality, as it takes no account of gravity. Okay, I now realize that's not even mildly funny, but you have to understand that other than Richard Feynman, physicists aren't especially funny, and Feynman is dead.
But I digress. Here's what I want to say about the 2nd Amendment standard model: It doesn't provide a causal account of the Supreme Court's change in thinking. There is a large body of scholarly literature purporting to show that the 2nd Amendment was not originally understood as a personal right, or that to the extent that it was so understood, it came with the possibility of such pervasive government regulation as to have no real content. I find this body of research more persuasive than the "standard model" research, but I understand how fair-minded historians could reach different conclusions. Under such circumstances, a Justice can find a basis in the original understanding for a variety of positions, and it's simply not plausible to think that it's the original understanding, rather than the Justice's priors, that's doing the deciding, as opposed to the rationalizing. How else to explain that I'm able to predict that the Court will line up Roberts/Scalia/Kennedy/Thomas/Alito for the "standard model" and Stevens/Souter/Ginsburg/Breyer against it?
Even apart from that cold wet blanket of legal realism, original understanding doesn't convert a "fraudulent" view into the law without a lot of help from other factors. Suppose some historian were to discover incontrovertible evidence that the Ninth Amendment was originally understood to empower the Justices to decide cases according to what their consciences tells them is the best understanding of natural law. Or suppose that there were overwhelming evidence that the Ninth Amendment was understood to confer, among other things, a right of minors to smoke tobacco. Isn't it clear that various Justices would nonetheless do everything in their power to controvert the incontrovertible? Changes in historical understanding rarely lead to changes in law, absent some other strong factor or factors.
2) The Liberals
A popular theory among some journalists and academics has it that the personal right view of the 2nd Amendment gained traction because it was endorsed by prominent liberals. If even liberals accept the personal right, the theory goes, then no one can hold out.
There are two problems with this theory. First, very few prominent liberals actually took this view. By my count, there were three: Sandy Levinson, Larry Tribe, and Akhil Amar. Amar isn't all that liberal to begin with, but let's put that aside. He and Levinson are such well-known contrarians---constantly dazzling their readers by pulling counter-intuitive rabbits out of hats in their work---that one can almost identify an orthodoxy by the fact that one or both of them are challenging it. As for Tribe, well, yes he did briefly sign onto the personal right view, but he loaded it up with the acceptability of so much regulation as to make the gesture practically useless to the pro-gun forces.
Now consider the second problem with the blame-the-liberals theory. Let's suppose it were true that prominent liberals had gone over to the personal right side. What causal difference could that possibly make? When have Justices Scalia and Thomas cared what liberal law professors thought, except perhaps as a reason to vote the other way? In Bush v. Gore? In Lawrence v. Texas? In Grutter v. Bollinger? Sure, if you're a conservative who believes the Second Amendment protects a personal right to self-defense, you're happy to be able to say "see, I'm not just some right-wing gun nut. Even notorious leftists like Sandy Levinson and Larry Tribe agree with me." But that doesn't explain why believing the Second Amendment protects a personal right to gun ownership for self defense is an ideologically conservative position in the first place.
3) The Vast Right-Wing Conspiracy
Why do people who support gun rights also tend to oppose abortion rights and favor the death penalty? And why do people who support abortion rights tend to oppose gun rights and oppose the death penalty. (I say "tend" deliberately. Obviously, one can find thousands of people who support each of the eight combinations in the 2x2x2 matrix.) The answer is partly a matter of association. If you are passionately pro-life, say, and you start attending meetings of like-minded people, you may find yourself drawn into conversations about other issues. Perhaps you were leaning against the death penalty (a combination of positions favored by the Catholic Church) but this is not an issue about which you previously cared very much. Now people who share your pro-life view on abortion start telling you that the Bible says a life for a life, and that convicted murderers are fundamentally different from innocent unborn babies, so you come to share their pro-death penalty view as well. Eventually the conversation turns to gun control, and once again, the principle of protection for innocent life is offered: The bad guys already have guns; it's outrageous for the government to disarm law-abiding citizens. Pretty soon, you've signed up for the whole program.
I've offered a rationalizing principle for the "conservative" concatenation of views on these three issues, and it's not a bad rationalizing principle, but the truth is I could have given a rationalizing principle for any combination on the 2x2x2 matrix. Someone could be pro-choice on abortion and pro gun rights on generally libertarian grounds. And indeed there are some people who belong to both the ACLU and the NRA. Such people might or might not favor the death penalty, which is not a strictly libertarian issue.
I don't have a complete account of how pro-life, pro-gun, and pro-death penalty positions all came be seen as politically conservative, but once that happened, it was not all that hard to predict that more and more conservatives would tend to hold all three positions. That's especially true of conservative legal elites. You might have signed up for the Federalist Society because you're anti-tax, but then you were bombarded with material to the effect that the Constitution does not protect abortion, does protect a personal right of gun ownership, and does not forbid the death penalty. The material is not exactly propaganda. The Federalist Society and its younger liberal counterpart, the American Constitution Society, are open to people with diverse views, and encourage open debate at their events. But they nonetheless train members to associate certain ideas with the cause.
(4) It's the Culture Wars, Stupid
The vast right-wing conspiracy explains how the personal right view of the 2nd Amendment, once adopted as a conservative position, spread to conservative elites, including a majority of the Supreme Court. But it does not explain how it became a conservative position in the first place. The answer to that question, I think, is mostly demographic.
Over the last generation, Southern, rural and exurban voters have become increasingly Republican, while the urban core and much of the suburbs have drifted Democratic. Southerners and rural populations have, for a variety of reasons, traditionally been much more attached to guns than the urban and suburban population, and worry, with some reason, that urban-dwellers don't understand why they value their guns. Think of Howard Dean's reference to "gun racks" and Barack Obama's musings about how the same people "cling to guns." Both comments likely alienated the very voters Dean and Obama were hoping to court. More generally, people who are conservative/Republican today are more likely than a generation ago also to be gun owners who favor gun rights.
In addition, the country as a whole is probably drifting in favor of a right to gun ownership---or at least the country's legislators are. As David Sedaris says near the end of his spectacular new book, When You Are Engulfed in Flames: "It's safe to assume that by 2025, guns will be sold in vending machines, but you won't be able to smoke anywhere in America."
Posted by Mike Dorf