In Defense of a Thin Second Amendment: Culture, the Constitution, and the Gun Control Debate

Abstract:     
This article, written for a symposium on the Second Amendment at the Albany Law School, uses Mark Tushnet's concept of the thin Constitution and populist constitutional law to consider the Heller case, in which the Supreme Court will decide whether the Second Amendment guarantees an individual right to keep and bear arms. In it, I argue that such an individual right is part of many Americans' thin Constitution, and that the Court's decision should respect, and reflect, that fact. However, I also urge caution in crafting the scope of the right, at least initially, because reasonable regulation of the individual right is apparently a part of the populist constitutional law of the Second Amendment as well.

Number of Pages in PDF File: 21

Keywords: Heller, Albany, Tushnet, thin Constitution, populist constitutional law, gun control, right to keep and bear arms, Parker, Roe, culture, Kahan

JEL Classification: k00

Accepted Paper Series