For Amanda Hollis-Brusky, the 2008 Supreme Court decision about an individual’s right to own a gun is a story about the lawyers, activists and law students who laid the groundwork for a radical new interpretation of the Second Amendment.
“For 150 years, courts interpreted that first part of the clause, the well-regulated militia, as limiting the scope of the right to keep and bear arms,” says Hollis-Brusky, associate professor of politics and author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution. “Until the 1970s and 1980s, scholars who were for a robust Second Amendment were lamenting the fact that courts had limited the right and had accepted a lot of regulation because they were putting too much emphasis on the collective, the militia.”
The District of Columbia vs. Heller, a case challenging Washington, D.C.’s strict handgun regulations, initiated what Hollis-Brusky describes as a two-step process necessary for the court to change a law.
“The first thing you need is at least five justices who agree with you. It’s a necessary condition, but it’s not sufficient,” she says. “Those five justices need to have the legitimacy of outside legal scholarship that justifies their opinion.”
The scaffolding for the 2008 case, says Hollis-Brusky, was provided by the Federalist Society, home to conservative and libertarian legal scholars.
“Long before the Supreme Court embraced the individual rights view of the Second Amendment, the Federalist Society had created a robust academic network to support that idea,” she says. Hollis-Brusky is skeptical that the most recent interpretation of the Second Amendment is the last.
“We talk about constitutional principles, but I think very few on the left or the right adhere so steadfastly to those principles,” says Hollis-Brusky. “The terms of the debate— ‘Are you an originalist or are you a living constitutionalist?’—have shifted. You still need to look to history, but how do you use that history and how do you take into account contemporary circumstances? Those are the big driving questions.”
In the classroom and in her work with students on research, Hollis-Brusky says she sees the next generation of activists. “There is less cynicism and more interest in being strategic in how they engage with the system. One of the things I like to tell them in the post-2016 world is that this is a time of great political possibility, for better or for worse. Things we never imagined would happen are now happening. You have to throw out all the rules about what we ought to expect, and that opens up a lot of possibilities for people who want to reimagine the way we are.”