How to Stop Worrying and Learn to Love the Second Amendment: A Reply to Professor Magarian

Abstract

In response to Gregory Magarian's Speaking Truth to Firepower: How the First Amendment Destabilizes the Second, 91 Texas Law Review 49, 53-72 (2012), we argue first that the strict dichotomy he posits between an individual right to keep and bear arms aimed at deterring (and furnishing the means for ultimately opposing) governmental tyranny and a right securing the means for private self-defense is a false one. Further, we argue that, to the extent there is any tension between the First and Second Amendments, Heller and McDonald eased that tension by locating individual self-defense at the core of the right. Such “modernization” of the right is preferable to Magarian’s (implicit) conclusion that the Second Amendment should have no (or little) judicially enforceable content at all.

Part II briefly summarizes Professor Magarian’s argument. In Part III, we then take issue with his conclusion that the only interpretation consistent with the Amendment’s text and history is that it was intended “to prevent a tyrannical government from disarming the people as a way to forestall popular insurrection” and that any other reading elides the Amendment’s “preamble.” In Part IV, we argue that Heller and McDonald’s placement of individual self-defense at the core of the right to keep and bear arms can be read as a product of judicial review’s “modernizing mission” — to borrow (and expand somewhat) a theory offered by David Strauss. The Court’s efforts, we argue, dissolve any ostensible tension between the rights guaranteed by the First and Second Amendments and should ease Professor Magarian’s anxieties about the suitability of an individual right to private arms ownership in a liberal democracy.