On Tuesday, the Supreme Court reached down to the Second Circuit and agreed to hear New York State Rifle & Pistol Association v. City of New York (Garrett Epps and gun rights advocate David Kopel have useful summaries). It seems apparent now that Justice Kennedy has been replaced by Justice Brett Kavanaugh the Court is ready to start ramping up the political project, paused after Heller (2008), of strong judicial protection for gun rights. The breadth and scope of the protection the forthcoming opinion will set out is little in doubt. The more interesting question is whether Chief Justice Roberts keeps it for himself or hands it off.
But the case and the expected outcome serve as a useful entryway into thinking about the legal policy terrain of the conservative movement–what the groups making up the movement agree on and how that came to be.
One telling recent moment was libertarian originalist Ilya Somin’s statement on the Volokh Conspiracy defending and defining originalism against a legal realist critique (Eric Segall’s “Originalism as Faith“). Analogizing originalism to an ecumenical Christianity–an interesting analogical move, to be sure–Somin argued that there was substantial policy agreement among the various conservative and libertarian “originalisms” academic lawyers have devised:
“Moreover, there is more agreement about particular cases among originalists than Segall lets on. For example, there is widespread agreement among originalists that the original meaning sets tighter limits on the scope of federal power relative to the states than is currently the case under post-New Deal Supreme precedent, that the Constitution provides substantially greater protection for property rights than currently exists, and that the Second Amendment includes a relatively robust individual right to bear arms.”
In other words, Somin was asserting (correctly) that there is agreement between the two dominant strands of constitutional conservatism–social and economic–on rolling back the New Deal and Great Society administrative state, economic property rights, and Second Amendment rights. Conspicuously absent from the field of agreement, however, were the social and cultural issues–abortion, LGBT rights, and scope of religious freedom–that animate the socially conservative wing of movement conservatism. Put differently, of all the social issues–and as Matt Lacombe’s forthcoming Journal of Politics article usefully demonstrates, gun rights is very much a social identity cultivated by the NRA over decades–it is gun rights that has emerged as a cultural glue which helps stabilize the coalition and its legal policy goals.
The gun rights as glue account may also serve as a window into the long-term political development of the conservative legal movement. As I’ve argued before, as early as the 1980s, the Meese Department of Justice, in particular the Office of Legal Policy, had laid out much what originalist academic lawyers would later dub the “new originalism” and its concomitant legal policy goals. For example, in a 1986 memorandum, Steven Calabresi agitated against judicial restraint and encouraged the DOJ to begin setting forth the intellectual foundations for reining in the administrative state and Congress. (Thus, in a nontrivial sense, Borkian originalism was already passe among the rising cadre before Bork was even nominated to SCOTUS).
But of all the economic and social legal policy goals that remain very much salient today, Calabresi’s and the OLP’s numerous white papers and memoranda (that is, the archival record) reveals very little, if any, discussion of the Second Amendment and its importance to the conservative legal movement. This does not appear to be an omission limited to the Meese DOJ. As late as 1994, in one of his many law schools speeches spreading the gospel of constitutional conservatism, Scalia’s take on the Second Amendment was that it only applied to the federal government, adding “I don’t know what the answer is” in regard to an individual right. And Robert Bork’s 1996 jeremiad Slouching Toward Gomorrah was dismissive of the notion of individual gun rights (166). (Bork’s book caused a stir in evangelical churches; one can still find old sermons based on the book on the internet).
Yet, only a little more than a decade later Heller was instantiated as the law of the land and the “commonsense” interpretation of the Second Amendment for those on the Right. This presents an interesting puzzle: why, seemingly, did the legal policy goal of constitutional protection for gun rights develop on a different track than so many other issues? Why were the first generation of originalists seemingly oblivious to or uninterested in the inclusion of this issue under the theory’s umbrella? (Calabresi’s memorandum gives lie to the simplistic explanation that judicial restraint alone has sufficient explanatory power). While academic lawyers and legal activists have produced pop histories of the Second Amendment, we lack a theoretically informed developmental account with the requisite archival and primary source work that can explain the rise of constitutional gun rights on a separate track from “mainstream” legal conservatism, and how those responsible for this move were welcomed so quickly into the conservative legal movement fold. This is some low-hanging and ripe fruit ready for scholarly exploration.