Gunfight at the Crossroads
No constitutional debate has shifted more dramatically over the last 25 years than the debate over the Second Amendment. In 1988, when the U.S. Department of Justice under Attorney General Edwin Meese produced its version of Crossroads, the Second Amendment wasn’t even mentioned. Now, in the wake of two 5-4 rulings by the Supreme Court in the Heller and McDonald cases, the debate over the Second Amendment has become a central battleground over the Constitution and the Bill of Rights.
Read the Crossroads chapter on the Second Amendment.
UCLA Law Professor Adam Winkler, who literally “wrote the book” on Heller and McDonald, has called the Heller opinion “Justice Scalia’s Living Constitution,” and it is certainly true that the Supreme Court’s interpretation of the Second Amendment has “lived” more in the last four years than in the previous 216 years combined. Still, in Heller and McDonald, the Court raised far more questions than it answered. While declaring that an individual right to bear arms is a fundamental constitutional right, the Court also stated unequivocally, twice, that many forms of gun regulation remain viable. The Court has further left open the precise contours of the right itself, as well as the test it will apply for judging restrictions on that right.
Perhaps the most fascinating aspect of the Second Amendment revolution is its potential for scrambling ideological divisions and changing the conversation about the Court. Because the Court is expansively interpreting an individual right, some conservatives, such as Judge J. Harvie Wilkinson III, have strongly condemned Heller as judicial activism from the right. On the other hand, CAC supported the gun rights advocates in McDonald to make a broader point about the meaning of the Fourteenth Amendment and the Constitution’s protection of individual rights.
Given the number of cases now working their way through lower courts concerning the right to keep and bear arms, awaiting the Supreme Court’s clearer guidance, the Second Amendment today is at a crossroads.