39 Pages Posted: 24 Mar 2008
Date Written: 3/15/08
D.C. v. Heller, currently pending before the Supreme Court, is already being hailed as the most important Second Amendment case in history. It is my contention, however, that Heller's resolution of the existing circuit split will almost certainly have little practical effect nationwide on gun policy. The reason is simple: The persistent and always tense debate over gun rights has thinly veiled underlying racial and socio-political struggles that are as old as the Union itself. In this article, I argue that the greatest legacy of Heller will lie not in its interpretation of the constitutional right to bear arms, but rather its potential to generate a reformed conversation about gun policy and its racial implications.
Conflicts over gun policy and over the meaning of the Second Amendment betray a deeper clash over intensely held competing cultural values, in which the cultural mythology of the frontiersman, often white and male, is pitted against the racial and class subaltern, African Americans in particular. While some scholars have identified this submerged battle over cultural values at the heart of Second Amendment interpretation and have suggested that successful reform to gun policy depends on unmasking and addressing the sources of those values, none has adequately considered the key, racialized underpinnings of Second Amendment rhetoric. Resolution of the great American gun debate depends neither on the latest disquisition from the Court on the Amendment's scope nor on facile attempts to assuage competing cultural adherents, as recommended by these scholars. Heller's most critical legacy, particularly in an election year, will lie in its ability to ignite discourse that inspires policy reform to dismantle racially laden cultural assumptions that nurture Second Amendment mythology. In this spirit of inspired discourse, therefore, the article concludes with suggestions for reform.
Keywords: constitutional law, Second Amendment, African American, gun policy, Supreme Court
JEL Classification: K10, K19, Z00
Suggested Citation: Suggested Citation
Burkett, Maxine, Much Ado About...Something Else: D.C. v. Heller, the Racialized Mythology of the Second Amendment, and Gun Policy Reform (3/15/08). U of Colorado Law Legal Studies Research Paper No. 08-11. Available at SSRN: https://ssrn.com/abstract=1111768 or http://dx.doi.org/10.2139/ssrn.1111768