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The Second Amendment as Teaching Tool in Constitutional Law Classes

The Second Amendment as Teaching Tool in Constitutional Law Classes

EUGENE VOLOKH University of California, Los Angeles - School of Law, ROBERT J. COTTROL George Washington University Law School, SANFORD LEVINSON University of Texas Law School, L.A. SCOT POWE, JR. Jr. University of Texas Law School and GLENN HARLAN REYNOLDS University of Tennessee College of Law

Abstract:

    Basic con law classes are meant to teach students some fundamental legal skills: Considering contentious moral questions from all sides, even those sides for which one has a visceral revulsion. Using the various modalities of interpretive argument -- interpretation focused on text, original meaning, the interplay of political structures, changed circumstances, precedent, and the implications of "fundamental," though unwritten, values within the American ethos. Thinking about how law can check power. Arguing articulately about the clash between solemn constitutional guarantees and eminently worthy countervailing government interests.

    The Second Amendment turns out to be a surprisingly useful tool for all these purposes:

    1. Second Amendment arguments tend to run counter to traditional political divides, and can thus help teach students to make arguments that they'd normally oppose.

    2. The Amendment, unburdened as it is with much Supreme Court baggage, is a particularly good tool for discussing the entire range of interpretive modalities.

    3. The Second Amendment was seen by the Framers as a basic part (perhaps the most basic part) of the checks and balances on federal government power.

    4. The Amendment particularly starkly presents the clash between textually secured constitutional rights and eminently legitimate government interests is rarely presented more starkly than in the Second Amendment.

    5. The Amendment can enrich our understanding of other provisions, such as the Free Speech Clause and the criminal justice provisions.

    6. Finally, the Amendment can remind students that constitutional protections needn't be all good: that the Constitution can sometimes be the subject of criticism and not just veneration.

    Our goal here is not to demonstrate the True Meaning of the Second Amendment. Rather, it's to show how the debates about the Amendment's possible meanings can enliven and improve the con law class.

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