The Evolving Role of Legal Scholarship in Second Amendment Jurisprudence
In 2018, Yale Law School professor Akhil Amar wrote an op-ed in The New York Times titled “A Liberal’s Case for Brett Kavanaugh.” This endorsement of a Republican nominee by a liberal law professor was significant, as it suggested that Justice Brett Kavanaugh would be “an avid consumer of legal scholarship.”
Fast forward nearly seven years, and Amar’s prediction about Kavanaugh’s reliance on legal scholarship, particularly in Second Amendment cases, has been realized. Kavanaugh and other conservative justices on the Supreme Court are increasingly engaging with legal scholarship, a trend that contrasts with the historical critique of such works as overly theoretical. Understanding this shift can offer insights into influencing constitutional law outcomes in other areas.
The longstanding critique against legal scholarship is well-documented. Chief Justice John Roberts once quipped about the impracticality of certain law review articles, stating, “Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria.” Similarly, Justice Stephen Breyer observed that law review articles “have left terra firma to soar into outer space.”
However, since the 2008 landmark decision in District of Columbia v. Heller, legal scholarship has played a notable role in Second Amendment opinions. During the 2023–2024 term, the Supreme Court’s handling of United States v. Rahimi cited 25 law review articles, in stark contrast to the average of just four in other cases. Only Loper Bright Enterprises v. Raimondo saw more scholarly references, as it involved overturning a decades-old legal doctrine.
Judges typically utilize scholarly articles in Second Amendment cases in various ways: supporting factual assertions, informing doctrinal analysis, guiding constitutional interpretation, and summarizing lower court trends. A distinct approach seen in Rahimi is the justices’ active solicitation for more scholarship. In his concurring opinion, Kavanaugh noted the ongoing debate on post-ratification history and observed that “respected scholars are continuing to undertake careful analysis” rather than resolving it himself.
Several factors explain the judiciary’s reliance on academic literature in this legal area. First, the Second Amendment is still in its formative stages. It wasn’t until the 2008 and 2010 Supreme Court decisions that federal courts regularly engaged with it. Second, Supreme Court decisions on gun rights now depend solely on historical context, unlike other individual rights contexts, which do not single-handedly rely on history and tradition.
Another explanation involves two influential legal movements. The first is the gun rights movement, which has significantly reframed judicial understanding of the Second Amendment. The second is a branch of the conservative legal movement advocating for originalism — interpreting the Constitution as per its original public meaning. This second movement is a key driver behind the increased academic engagement.
Originalism has thrived in the judiciary, with the legal movement fostering collaboration between scholars, judges, and advocates. Originalist scholar Larry Solum has suggested that originalist methodologies should “involve the production of originalist scholarship in the academy with consumption of that scholarship by the courts.” This collaboration is facilitated by organizations like the Heritage Foundation and the Georgetown Center for the Constitution, which offer seminars and events bringing together judges and scholars.
Through the judicial appointments process, particularly during President Trump’s term, many judges familiar with originalist scholarship have joined the bench. A recent study noted that “Federalist Society membership was virtually required,” with originalism becoming a prominent approach within the organization. This familiarity with scholarship may influence judges’ comfort in citing these sources.
In Rahimi, Kavanaugh’s concurrence mostly cites originalist scholars rather than those specializing in the Second Amendment. As noted by some observers, the cited scholars represent a small segment of those discussing constitutional law’s tradition relevance, often excluding progressive academics.
The collaboration between judges and scholars in developing Second Amendment law offers a model for other legal movements. Conservative legal scholars, practitioners, and judges have numerous organized opportunities to share ideas, as seen in the regular events hosted by the Federalist Society. Such gatherings, which have occurred over extended periods, significantly impact constitutional understanding and doctrine.
The progressive legal movement, despite having more professors and lawyers, lacks the same organizational level seen in the conservative movement. This disparity in approach has allowed the conservative legal movement to impact constitutional interpretation effectively.
The objective here is not to opine on the desirability of such collaborations but to acknowledge their existence and the role of legal movements. Organizations aiming for different legal changes might learn from the strategies that have influenced the current Second Amendment landscape.
Andrew Willinger is the executive director of the Duke Center for Firearms Law.
Eric Ruben is a professor of law at SMU Dedman School of Law and a fellow at the Brennan Center. His scholarship was cited in the majority opinion and a dissenting opinion in Bruen and in a concurrence in Rahimi.
