Does the Second Amendment Make Gun Politics Obsolete?

Abstract

InAmerican law, the boundaries of regulation are set by—among other things— politics and the Constitution. Either one can serve as a constraint. Regulations that are politically unpopular or otherwise unfeasible are non-starters regardless of whether they satisfy the Constitution. Regulations that violate the Constitution, on the other hand, may be tremendously popular but will often be struck down by courts. The line between these political and constitutional constraints is never entirely clear, as political rhetoric and constitutional doctrine borrow from one another in innumerable ways. Elected officials take oaths to uphold the Constitution; judges often act in ways that appear political. But in a broad sense, judges are more commonly associated with the enforcement of constitutional law and regularly deny that they are doing politics—a matter for elected officials. Recognizing some slippage between the categories, we can draw a line between judge-enforced constitutional law and democratic politics. Formost of American history, the balance of gun rights and regulationwas set by politics—not, as one might suspect from its prominence in the current gun debate, the Second Amendment. Decisions about gun law were made by elected officials at the federal, state, and local level, responding to different forms of political pressure.