Scholarship and the “Constitutional Case for Gun Control”

Earlier this week, Yale law students Joshua Feinzig and Joshua Zoffer published a powerful piece in The Atlantic describing the “A Constitutional Case for Gun Control.” Inspired in part by Robert Cover’s work on the essential role of narrative in imbuing law with moral authority, they argue that the narrative-driven brief filed by the March for Our Lives Action Fund in NYSRPA “marks the beginning of a long-needed effort to offer a pro-gun-control constitutional narrative, one that calls attention to the constitutional rights and goods vindicated by gun regulation.”

The MFOL brief is indeed an extraordinary document, and Feinzig and Zoffer highlight the ways in which it differs from standard defenses of gun regulation, which tend to invoke doctrine, history, or empirics. As Darrell pointed out to me, the brief is also a notable example of what Jamal Greene calls “Pathetic Argument in Constitutional Law”—an argument that appeals to pathos; a reader’s emotions. Gun rights advocates have made powerful use of those arguments over the years by tying the right to keep and bear arms to the right of self-defense (sometimes conflating the two), and Feinzig and Zoffer note that supporters of gun regulations are invoking the same underlying interests in personal safety: “Gun-control advocates need their own constitutional narrative, one that incorporates a broader conception of self-defense into its vision.”

At a broader level, they are quite right to point out that “the right to bear arms is not the only constitutional commitment implicated in the guns debate ….” And indeed, one of the most important trends in Second Amendment scholarship over the past few years has been increasing recognition and exploration of that fact. As the book’s title suggests, Darrell and I try to do some of that (while emphasizing the importance of a positive constitutional narrative) in The Positive Second Amendment.

But other scholars have done much more thorough work on various other “rights and interests of constitutional magnitude” that intersect with—and might be in tension with—the Second Amendment. Feinzig and Zoffer point to the First Amendment’s rights of assembly and expression, about which Tim Zick, Luke Morgan, and Greg Magarian (among others) have written insightful pieces. Eric Ruben has done important work on the relationship between self-defense and the right to keep and bear arms (“An Unstable Core: Self-Defense and the Second Amendment,” forthcoming soon in the California Law Review) and has a nuanced argument about the ways in which perceptions of safety—not just direct prevention of shootings—can be invoked to support the constitutionality of gun regulations. Jon Lowy and Kelly Sampson have described a “Right Not to Be Shot.”

The list could go on, which is really the point: From a variety of perspectives, legal scholars are increasingly exploring how the right to keep and bear arms intersects with other constitutional rights and interests. That does not necessarily translate directly into advocacy, nor should it—recognizing a multiplicity of constitutional interests is a way to frame the inquiry, not to answer it. But, at least in this instance, scholarship may have something useful to add.