Response
to: Eugene Volokh, The First and Second
Amendments, 109 Colum. L. Rev. Sidebar 97 (2009).
Analogies are temperamental things. If it strikes someone wrong, no matter how
scrupulously you explain yourself, no matter how defensible your position,
people who may otherwise agree with you half of the time never seem to get past
the analogy. Arguments in hotly
contested areas of the culture wars tend to run against how the thing is
expressed, rather than what is expressed.
Race, abortion, sexual orientation:
Very often, discourse on these topics degenerates into debates about
legitimate ways to talk about the thing, rather than talking about the thing
itself. The same phenomenon applies to talk
of guns. Further evidence, in my
opinion, that Second Amendment discourse is not so much about guns or gun
policy, but “much ado about something else.”1
This is how I read Professor Volokh’s occasionally strident
response2 to my recent piece, Guns as Smut: Defending the Home-Bound Second Amendment.3 Much of Professor Volokh’s rebuttal is a
mordant challenge to the accuracy of the analogy, rather than to arguments that
underpin the analogy and independently justify the home-bound Second
Amendment. I gather that Professor
Volokh believes that if he can show that the facts supporting an analogy to
obscenity are faulty, then those same facts supporting a home-bound Second
Amendment must be faulty as well. Fair
enough.
Nevertheless, I propose a thought experiment: For those who flinch at the title, and can’t
get past the suggestion that a right to private possession and use of firearms
might look like the right to private possession and use of smut, read the piece as if
the analogy did not appear until the very end.
Or, if you rather, read the piece in reverse.
The argument now goes roughly like this: People want a voice in the debate on use of
guns in public, if polling is to be believed.
The history of public bearing of arms for self-defense is deeply contested—especially
during the Reconstruction period when public bearing of arms was so politically
volatile. Contrast this with the private
possession and use of firearms for defense of the home, which has almost
universal historical support for several centuries. Judges generally should defer to political and local
branches of government when history does not provide definitive guidance as to
the scope of a constitutional right. The
home is the one place where possession and use of arms has been universally
historically supported. Therefore, the
federal constitutional right to keep and bear arms should be limited to the
home where the history is most certain, with political judgments or local
constitutions regulating (or protecting) guns everywhere else. What other federal constitutional right is
limited to the home, with political judgments governing the right everywhere
else?
Obscenity.
* Assistant
Professor of Law, University of Cincinnati
College of Law. J.D., Harvard
Law School;
B.A., M.A., Oxford University; B.A. Anderson
University.
1 See Maxine Burkett,
Much Ado About . . . Something Else: D.C. v.
Heller, The Racialized Mythology of the Second Amendment, and Gun Policy
Reform, 12 J. Gender Race & Just. 57, 58 (2008) (discussing gun debate as
method of racialized discourse); Dan M. Kahan, The Secret Ambition of
Deterrence, 113 Harv. L. Rev. 413, 451 (1999) (arguing gun debate is not about
guns or crime so much as it is about contesting groups’ attempts to use prestige
of law to confirm their worldview).
2 Eugene Volokh, The First and
Second Amendments, 109 Colum. L. Rev. Sidebar 97 (2009), http://www.columbialawreview.org/Sidebar/volume/109/97_Volokh.pdf
.
3 Darrell A.H. Miller, Guns as
Smut: Defending the Home-Bound Second
Amendment, 109 Colum. L. Rev. 1278 (2009).
Preferred Citation: Darrell A. H. Miller, A Short Reply to Professor Volokh,
109 Colum. L. Rev. Sidebar 105 (2009), http://www.columbialawreview.org/Sidebar/volume/109/105_Miller.pdf.