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

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