Dave Kopel posted an interesting article to SSRN attempting to reconcile the right to bear arms and the living constitution. H/T Legal Theory Blog. Here is the abstract:

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

“Living constitutionalism” should be distinguished from “dead constitutionalism.” Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect constitutional rights. Under a “dead constitution,” judges simply impose their personal values, and nullify parts of the Constitution which they do not like.

When living constitutionalism is taken seriously, the case for the Second Amendment individual right to own and carry firearms for self-defense is very strong. In the 19th century, almost all legal commentators and courts, as well as the political branches and the public, recognized the Second Amendment as guaranteeing such a right.

In the 20th century, some elements of the legal elite asserted that the Second Amendment guaranteed no meaningful right. But this view was never accepted by the public or by the political branches. Congress repeatedly enacted laws to protect Second Amendment rights. In the states, right to arms constitutional provisions were added or strengthened, and many statutes were enacted to defend and broaden the right, especially in the last several decades. Opinion polls showed that the public always believed in the Second Amendment right.

As Jack Balkin has elucidated, the ability of groups such as the NRA (or the ACLU or NAACP) to mobilize constituencies, persuasively communicate their constitutional vision to the public, and influence the political process in favor of the appointment of sympathetic judges is a major force which shapes our living constitution.

From an originalist standpoint, the living constitutionalism of the Second Amendment had a positive influence, in that the social and political forces which living constitutionalism celebrates finally convinced the Supreme Court to stop ignoring the Second Amendment. Living constitutionalism does not always lead back to enforcement of original meaning, but in District of Columbia v. Heller, it did.

What is interesting about this article is Kopel attempts to adopt the living constitution theories of the left, and apply them to the right to keep and bear arms. According to Kopel’s theories, the Second Amendment should be protected, whether as a matter of originalism (as the Court did in Heller) or according to the Living Constitution (see Balkin and others).

Kopel attempts to use empirical evidence showing the great support for the right to keep and bear arms to signal the Constitutional significance of the Second Amendment in our modern era.  Specicifically, he takes Balkin’s quotes about the Constitution in general, and applies them to the Second Amendment.

The Democrats in 2006 and 2008 reversed the curse of 1994, taking back control
of Congress, thanks to the dozens of pro-Second Amendment candidates whom they
put forward.
As Balkin notes, ―”the Supreme Court often takes direction about how to
construct doctrine from contemporaneous expressions of constitutional values by
political majorities.”128 The importance of the living, vital, Second Amendment was
expressed not only in election results which the Supreme Court read about, but in
briefs filed by Congress

When courts exercise judicial review to strike down laws, they often work in
cooperation with the dominant national political coalition,‖ says Balkin.135 Thus,
Brown v. Board came only after most states had already abolished de jure racial
segregation in schools, and Lawrence v. Texas only after most states had repealed
criminal laws against sodomy.136 Similarly, the fact that handgun prohibition in the
United States was very rare (only D.C., Chicago, and five Chicago suburbs) is a
crucial fact in understanding Heller via living constitutionalism.

―Constitutional constructions become durable, says Balkin, ―when people stop
fighting about them and accept them in practice.137 With Heller, the fighting never
even began. Presidential candidates Barack Obama and John McCain rushed to
announce their agreement with the decision.138 During the election campaign, there
was no controversy at all about Heller, except that McCain‘s side accused Obama of
being insufficiently devoted to the decision, and Obama‘s side retorted that Obama
was a firm supporter of Heller. Quite a contrast to cases such as Miranda or Roe v.
Wade, which instantly became hot political issues, with many candidates building
political capital by denouncing the Court‘s decision.

As Kopel does not endorse, nor reject, the Living Constitution argument, I think this is a very interesting approach. In a previous article analyzing Justice Breyer’s philosophy of “Active Liberty,” I made a somewhat similar argument, that Breyer should support the Right to Keep and Bear Arms (pp. 28-29).

Breyer writes that the framers were not certain that liberty could be protected merely by constitutional
structures, so “they added a Bill of Rights with explicit protections against government
interference with certain fundamental personal liberties.”249 In his book, he spends significant
amounts of time talking about free speech, the criminal procedure amendments, cruel and
unusual punishment, and other rights specifically mentioned in the bill of rights as among these
personal liberties. But he does not include the Second Amendment in this list. The Second
Amendment is certainly in the Bill of Rights. Or does that not count for Justice Breyer as a
“fundamental personal liberty?”

On the role of the courts to enforce these liberties, Justice Breyer writes further “One
could understand an independent judiciary as providing the additional protection, for judges
could interpret the Constitution’s delegation of limited power to the federal government as
excluding the authority to take action that deprived individual citizens of their (negative)
Liberty.”250 But isn’t that what the independent judiciary did in Heller? They interpreted the
limited delegation of power to the D.C. government, and took action to prevent the deprivation
of the citizens’ liberty to keep and bear arms. Yet why does Justice Breyer not champion the role
of the Court in Heller? It fully exemplifies his idealized view of the Court.

Justice Breyer continues, “But my thesis . . . finds in the Constitution’s democrative
objective not simply restraint on judicial power or on ancient counterpart of more modern
protection, but also a source of judicial authority and an interpretive aid to more effective
protection of ancient and modern liberty alike.”251 But what could be more ancient than the
“ancient and indubitable right” to keep and bear arms? 252 Now of course Justice Breyer does not
use the concept of liberty of the ancients in the same sense I imply, but according to his description of liberty of the ancients, keeping arms should fit right in. According to Breyer, the
liberty of the ancients “consisted of a sharing of a nation’s sovereign authority among that
nation’s citizens . . . [and enabled a] constant participation in a collective power.”253 Historically,
the right to keep arms served as a strong bulwark of keeping a despotic tyrant in check, and
ensuring that citizens can participate in society. Consider the influence of the Black Codes
disarming freedmen in the Reconstruction South. Surely that prevented them from engaging in
the participative process?254 Even after the Thirteenth Amendment, it is very hard to vote when a
lynch mob or the Klan is burning down a freedman’s home, and he is left disarmed and helpless.
For that reason, the right to keep and bear arms was so essential to the 39th Congress that passed
the 14th Amendment; an Amendment Breyer otherwise heavily respects. Consider how the
Kings of England sought to disarm his subjects to strengthen the influence of his standing
armies?255 In all these cases, an armed citizenry enabled the people to keep the ruling class
cautiously restrained.

The right to keep arms should also be considered a modern liberty, another element
Justice Breyer seeks to protect.256 A modern liberty “consisted of the individual’s freedom to
pursue his own interests and desires free of improper government interference.”257 To call the
D.C. gun ban mere “interference” is an understatement. It was an absolute ban on a fundamental,
ancient liberty, and inhibited citizens’ ability to pursue that freedom. By Justice Breyer’s own
words, the right to keep and bear arms should be both an ancient, and modern liberty. Yet to
Justice Breyer, it is neither.
It seems to me that Justice Breyer signing onto the majority opinion in Heller, according
to his views in Active Liberty, should have been a fait acompli. The Court protecting the Second
Amendment satisfies all the hallmarks of his active liberty framework. Heller enforces a liberty
explicitly mentioned in the bill of rights, and the courts are empowered to enforce the limited
delegation of power to the state because it protects a liberty of the ancients. Though he did not
sign onto the majority. But why?