What Are Constitutional Rights For? The Case of the Second Amendment
65 Pages Posted: 24 Apr 2015 Last revised: 18 Apr 2016
Date Written: February 26, 2015
District of Columbia v. Heller – the Supreme Court’s 2008 Second Amendment decision – was the occasion for a momentous national conversation that never happened. Heller sparked heated debates about the Court’s originalist interpretive methodology, but virtually nobody asked what should have been an obvious question: even if the Court got the meaning of the Second Amendment right, why should we obey that Amendment?
This is the curiously underexplored question of the authority of constitutional rights – of why, indeed whether, we have some obligation to respect those rights even when we disagree with them. The Second Amendment brings that question front and center in a way arguably not seen since the demise of the Fugitive Slave Clause 150 years ago. Like that infamous Clause, the Second Amendment features relatively specific text – protecting a “right...to keep and bear Arms” – that itself is sufficient to provoke controversy, regardless of precisely how that text is interpreted. Americans who disagree with a “right” to abortion can take some comfort in the notion that the Supreme Court got the meaning of “liberty” wrong. But Americans who disagree with a “right … to keep and bear Arms” have no one to blame but the Constitution itself.
Should these Americans nonetheless treat the Second Amendment as authoritative, and if so, why? In seeking to answer that question, the analysis in this Article suggests some important truths about constitutional rights more generally. It suggests, first of all, that justifying the authority of constitutional rights is not as easy as is often assumed. Most accounts of constitutional authority are substantive in nature: they tell us to obey the Constitution because of what the Constitution commands. The author contends, however, that none of these substantive accounts is plausible. The authority of the Constitution must be justified procedurally – based not on what it commands, but on how it commands us – or not at all.
A procedural account, however, cannot explain the Second Amendment on most interpretations of that provision. It cannot justify Heller’s individual-self-defense reading of the Amendment, or various “anti-tyranny” readings common in popular discourse. Only the “structural federalism” interpretation advanced by the dissenters in Heller is arguably consistent with a procedural account of constitutional authority.
The implications of this conclusion extend well beyond the Second Amendment itself. They imply a jurisdictional principle of constitutional law, according to which other constitutional provisions and doctrines – including, the author suggests, the abortion right and other aspects of “substantive” due process – might lack a valid claim to constitutional status. And they suggest a principle of constitutional interpretation: all else being equal, the Court should interpret a constitutional provision in the way that best justifies its authority over us.
Keywords: Second Amendment, District of Columbia v. Heller, McDonald v. City of Chicago, constitutional rights, constitutional authority, judicial review, Supreme Court, John Hart Ely, Carolene Products, Footnote Four, constitutional legitimacy, jurisprudence, legal theory, constitutional theory
JEL Classification: K40
Suggested Citation: Suggested Citation