The Supreme Court’s New Battlefield

25 Pages Posted: 30 Apr 2012

See all articles by Josh Blackman

Josh Blackman

South Texas College of Law Houston

Date Written: April 28, 2012


Adam Winkler’s new book Gunfight tells the story of the battle over the right to bear arms in America. The flow of Gunfight, which reads more like a page-turning novel than an academic work, can best be described as a finely designed tapestry - several intricately woven threads cross and intersect throughout the chapters to form a rich, full discourse of the story of gun rights and gun control in America. The first thread tells the captivating story of District of Columbia v. Heller. The second thread introduces the genesis of the modern-day gun control movement, pejoratively labeled by Winkler as the 'gun grabbers,' who aspire for complete civilian disarmament.

The third thread explores the evolution of the so-called 'gun nuts,' who instinctively oppose any limitation on the right to keep and bear arms, no matter how reasonable or sensible. The extreme gun grabbers and gun nuts have declared the Second Amendment as the Supreme Court’s new battlefield: a sharp culture war divided along firmly entrenched ideological fronts, with no choice of a middle ground. But as Winkler’s balanced, important, and timely work shows, this has not always been the case in America.

The fourth thread—and really the vein that circulates Winkler’s thesis throughout the work - is the relationship between gun rights and gun control in the American tradition. This balance has ebbed and flowed along with numerous social movements in our nation’s history: from Revolution, to Reconstruction, to the Frontier, to Prohibition, to the Civil Rights Era, to the present.

Though a fifth thread that threatens to unravel the entire tapestry is loose - what is the relevance of this history to the development of modern Second Amendment jurisprudence? - the Supreme Court, and not Winkler, is to blame for this shortfall. Heller has set forth an uneasy temporal relationship between the original understanding of the Second Amendment - that is, how the right would have been understood at the time of its ratification in 1791- and the role that the two centuries of cultural and legal development that Winkler chronicles should play in the constitutionality of gun control laws.

Since Heller and McDonald v. City of Chicago, the lower courts have grappled with this question. Winkler does not fully connect this history with the future, short of making the lamentable, though largely anachronistic, argument that 'as the history of the right to bear arms and gun control shows, there is a middle ground in which gun rights and laws providing for public safety from gun violence can coexist.'

Winkler’s magisterial work is by far the fairest and most well-balanced book about gun control in America. Winkler, better than any scholar today, can peel back the veneer of the heated rhetoric and drill to the core of what this issue is about - keeping society safe and minimizing harm from guns, while at the same time protecting the right of people to defend themselves. With its appeal to both academic and popular audiences, Gunfight will bring some much-needed clarity to the fog of the Supreme Court’s new battlefield.

Keywords: originalism, Heller, second amendment, Scalia, Winkler, gun control

Suggested Citation

Blackman, Josh, The Supreme Court’s New Battlefield (April 28, 2012). Texas Law Review, Vol. 90, No. 1207, 2012, Available at SSRN:

Josh Blackman (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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