Common Good Gun Rights
25 Pages Posted: 30 Aug 2023 Last revised: 18 Jan 2024
Date Written: August 25, 2023
Professor Adrian Vermeule's Common Good Constitutionalism aims to invigorate debates in public law that, for many, have become tedious and predictable. His book is unsparing in its hostility to the shibboleths of the left and the right and has invited some pointed rebukes.
But one can appreciate the brio of Vermeule's book, cheer its Mercutian disdain for the left and right, and still be concerned about its substance. Vermeule offers common good constitutionalism as more than a rejoinder to originalism and progressive constitutionalism; it is supposed to supply, in the Dworkinian sense, the "right" answer to legal questions.
Rising to the challenge, I offer a thought experiment to test how common good constitutionalism works as a theory: common good gun rights. Imagining a common good constitutionalist's answers to the welter of unanswered questions in Second Amendment doctrine is a perfect beta test for how well common good constitutionalism can prescribe as much as criticize. I conclude that common good constitutionalism does provide a method for deciding whether a Second Amendment opinion is correct, albeit in a way that does not neatly map onto current ideological arrangements.
The Article proceeds as follows: Part I serves as an introduction. Part II outlines four contentions of common good constitutionalism--its critique of the private-public distinction; its understanding of institutions; its conception of rights; and its belief in law’s inherent normativity--and connects them to some familiar theoretical disputes about law. Part III applies these four aspects of common good constitutionalism, in roughly reverse order, to pending issues of Second Amendment doctrine after New York State Rifle & Pistol Ass'n v. Bruen. Part IV offers some concluding remarks.
Keywords: constitutionalism, constitutional law, originalism, jurisprudence, Second Amendment, firearms
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