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01/27/2019

Calvin TerBeek on Gun Rights and the Conservative Legal Movement
Michael Ramsey

At A House Divided, Calvin TerBeek:  Gun Rights as Glue? The Contested (and Uncontested) Legal Policy Terrain of the Conservative Legal Movement.  From the introduction:

On Tuesday, the Supreme Court reached down to the Second Circuit and agreed to hear New York State Rifle & Pistol Association v. City of New York (Garrett Epps and gun rights advocate David Kopel have useful summaries). It seems apparent now that Justice Kennedy has been replaced by Justice Brett Kavanaugh the Court is ready to start ramping up the political project, paused after Heller (2008), of strong judicial protection for gun rights. The breadth and scope of the protection the forthcoming opinion will set out is little in doubt. The more interesting question is whether Chief Justice Roberts keeps it for himself or hands it off.

But the case and the expected outcome serve as a useful entryway into thinking about the legal policy terrain of the conservative movement–what the groups making up the movement agree on and how that came to be.

One telling recent moment was libertarian originalist Ilya Somin’s statement on the Volokh Conspiracy defending and defining originalism against a legal realist critique (Eric Segall’s “Originalism as Faith“). Analogizing originalism to an ecumenical Christianity–an interesting analogical move, to be sure–Somin argued that there was substantial policy agreement among the various conservative and libertarian “originalisms” academic lawyers have devised:

“Moreover, there is more agreement about particular cases among originalists than Segall lets on. For example, there is widespread agreement among originalists that the original meaning sets tighter limits on the scope of federal power relative to the states than is currently the case under post-New Deal Supreme [Court] precedent, that the Constitution provides substantially greater protection for property rights than currently exists, and that the Second Amendment includes a relatively robust individual right to bear arms.”

In other words, Somin was asserting (correctly) that there is agreement between the two dominant strands of constitutional conservatism–social and economic–on rolling back the New Deal and Great Society administrative state, economic property rights, and Second Amendment rights. Conspicuously absent from the field of agreement, however, were the social and cultural issues–abortion, LGBT rights, and scope of religious freedom–that animate the socially conservative wing of movement conservatism. Put differently, of all the social issues–and as Matt Lacombe’s forthcoming Journal of Politics article usefully demonstrates, gun rights is very much a social identity cultivated by the NRA over decades–it is gun rights that has emerged as a cultural glue which helps stabilize the coalition and its legal policy goals. ...