Cornell Law professor Michael C. Dorf explores the meaning of a question Justice Clarence Thomas asked during the oral argument in New. York State Rifle. & Pistol Association v. Bruen about the interpretation of the Second Amendment: “should we look at the founding, or should we look at the time of the adoption of the Fourteenth Amendment, which then, of course, applies it to the states?” Professor Dorf argues that the question exposes a weakness of Justice Thomas’s originalist philosophy and affirms what we already know about arguments rooted in original meaning: they typically serve a rhetorical function, and Justices invoke them to justify decisions taken on other, ideological, grounds.
Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—comments on a recent decision by a federal district judge in San Diego striking down California’s statewide ban on assault weapons. Professor Sarat observes that regardless of the outcome of the appeals in this case, the country will remain deeply divided about things like COVID-19 restrictions and gun ownership while our political leaders and the judges they appoint continue to repeat the underlying antipathies animating these divisions.
Austin Sarat—Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on yesterday’s decision by the U.S. Supreme Court deferring deciding on a Second Amendment issue presented by a New York City law that prohibited gun owners from transporting their guns out of the city. Sarat points out that the issue that divided the Court’s conservative justices in this case was not whether to radically expand the protections of the Second Amendment, but when and how to do so.
Alan Brownstein, an emeritus law professor at UC Davis Law, comments critically on the sole opinion—a dissent—US Supreme Court nominee Brett Kavanaugh has written about the Second Amendment. Brownstein points out two critical fallacies of Judge Kavanaugh’s position with respect to Second Amendment challenges to gun regulations articulated in that dissenting opinion.
Cornell University law professor Michael C. Dorf describes the underappreciated role of the US Supreme Court in shaping public opinion and discussion of gun regulations. Specifically, Dorf explains that the Court's seminal decisions in District of Columbia v. Heller and McDonald v. City of Chicago have symbolic importance beyond their literal holdings, giving gun rights proponents strong rhetoric, though not strong legal basis, for an absolutist position.
George Washington law professor and economist Neil H. Buchanan considers the irony of the (hopefully remote) possibility that people might resort to violence to keep President Trump in power. Buchanan explains the “insurrectionist view” of the Second Amendment, which has never been credited by the Supreme Court, but which holds that the founders included the gun-related amendment in the Bill of Rights to prevent the federal government from running roughshod over the people. Buchanan points out the circular logic that under the insurrectionist view, the reason people need guns is to prevent the government from taking their guns.
George Washington law professor and economist Neil H. Buchanan considers the implications of the fact that a very small number of Americans own a very large percentage of the privately owned guns in the United States. Specifically, he considers whether the already-enormous number of guns owned by Americans means that we are doomed to live with gun violence forever, no matter what a future Congress might do, and whether the concentration of guns in the hands of Donald Trump’s supporters raises any special concerns about attempts to impeach the president.
Cornell University law professor Michael C. Dorf explains why, if Congress wants to ban or further regulated the sale of “bump stocks,” it should act quickly or risk missing the window in which regulation is possible. Dorf points out that the test the Supreme Court uses for whether weapons count as “arms” protected by the Second Amendment is whether they are in “common use,” not whether they are “dangerous and unusual weapons.” Dorf argues that so long as bump stocks remain legal, people can accumulate them, and if enough people do that before they are banned, there could be so many in circulation as to qualify as in common use, thereby falling within the scope of Second Amendment protection.