"Second-Class" Rhetoric, Ideology, and Doctrinal Change

46 Pages Posted: 2 Nov 2021 Last revised: 2 May 2022

See all articles by Eric Ruben

Eric Ruben

SMU Dedman School of Law

Joseph Blocher

Duke University School of Law

Date Written: October 29, 2021

Abstract

A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as a matter of rhetoric. What do people mean when they allege that a constitutional right is subject to second-class treatment? What are the relevant audiences for these arguments? And how does such rhetoric travel throughout the legal system—from briefs, for example, into court opinions?

In this Article, we use Second Amendment litigation to illuminate the complex interplay between attorneys and judges invoking the second-class claim. After situating the second-class argument in the literature on law and rhetoric, we empirically investigate its development by isolating each use of second-class rhetoric in briefs and opinions in the decade following District of Columbia v. Heller. We show that the second-class argument is, indeed, increasingly prevalent in litigation as a justification for enhanced judicial protection of the Second Amendment. We also find support for the proposition that advocates use the second-class claim differently depending on the court they are in. Finally, we show how the second-class claim is ideological, appealing to a small but growing number of Republican-nominated judges. Our analysis provides a clearer picture of an increasingly common argument that has the potential to shape individual rights jurisprudence for years to come. And by illustrating a more nuanced picture of how a consequential legal argument operates on a rhetorical level, we hope to advance our understanding of how constitutional change happens.

Keywords: constitutional law; individual rights; jurisprudence; second amendment; gun rights; doctrine; constitutional change

Suggested Citation

Ruben, Eric and Blocher, Joseph, "Second-Class" Rhetoric, Ideology, and Doctrinal Change (October 29, 2021). 110 Geo. L.J. 613 (2022), SMU Dedman School of Law Legal Studies Research Paper No. 525, Duke Law School Public Law & Legal Theory Series No. 2021-46, Available at SSRN: https://ssrn.com/abstract=3952895 or http://dx.doi.org/10.2139/ssrn.3952895

Eric Ruben (Contact Author)

SMU Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

Joseph Blocher

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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