“The Anti-Carolene Court and Gun Politics”

A very interesting post by Darrell Miller connecting ongoing Second Amendment debates to my forthcoming article, The Anti-Carolene Court.

Stephanopoulos, as a voting rights scholar, is most concerned with how judicial action (or inaction) aids partisan entrenchment rather than prevents it.  But his observations are also applicable to New York State Rifle & Pistol Association, Inc.  v. New York City  Everyone seems to agree that gun violence is a serious problem – even Justice Scalia recognized as much in his majority opinion in District of Columbia v. Heller.  But he went on to note that the Second Amendment takes “certain policy choices off the table.”   Political process theory, though, would say that how much the Second Amendment knocks off the table is a function of both the risks presented by gun violence and the risks of a policy over-reaction.

Gun rights advocates have gone to extraordinary lengths since Heller to depict themselves as targets of over-reaction, victims of a political process failure, and minorities in need of vigorous judicial protection.   Their self-description is a powerful organizational and rhetorical tool, but is difficult to square with political reality.   There has been an utter lack of political movement on even the most modest (and most popular) gun violence prevention legislation, like universal background checks.  Even back-to-back mass shootings in Texas and Ohio, and the most recent shooting in a California high school, have seemingly no effect on the political deadlock.  It seems extremely difficult to see how the political process is failing to prevent a policy over-reaction.

Miller’s post raises the question of what (if anything) political process theory has to say about constitutional provisions, like the Second Amendment, that endorse values completely unrelated to the structure and operation of democracy. John Hart Ely famously thought that such provisions don’t belong in a well-written constitution. Carolene Products also declined to apply its pro-democratic theory of judicial review to “legislation [that] appears on its face to be within a specific prohibition of the Constitution.”

It’s therefore fascinating, as Miller describes, that gun rights advocates are trying so hard to portray themselves as victims of a political process failure. If this were actually the case, it might be legally irrelevant because (per the above quote from Carolene Products) the Second Amendment isn’t a site for pro-democratic judicial review. Or, if political process theory does apply to the Second Amendment, the alleged powerlessness of gun rights advocates might support the invalidation of gun control legislation. On this account, judicial intervention could be based on both standard modalities of constitutional interpretation and a political process malfunction. Lastly, if political process theory is applicable here, but the political process isn’t misfiring with respect to gun control (or is misfiring in the opposite direction, in favor of gun rights advocates), then Carolene Products would counsel judicial restraint. Other modalities might still impel courts to intercede, but political process theory would press in the opposite direction.

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