COMMON GOOD GUN RIGHTS
DARRELL A. H. MILLER
*
INTRODUCTION
With Common Good Constitutionalism, Professor Adrian Vermeule
has done what I didn’t think possible in our polarized age. He’s
written a book that both progressives and conservatives hate. Con-
servatives detest his take-down of originalism, including an
oblique swipe at District of Columbia v. Heller
1
—the golden child of
that interpretive method. Progressives rankle at his contempt for
living constitutionalism, and his unmitigated disdain for that
movement’s triumph, Obergefell v. Hodges.
2
Progressives and con-
servatives both hate Common Good Constitutionalism, which is a tes-
tament to a project as uncompromising in its intellectual honesty as
this one.
Vermeule’s object with Common Good Constitutionalism is to invig-
orate debates in public law that, for many, have become tedious
and predictable. His book is unsparing in its hostility to the shibbo-
leths of the left and the right and has invited some pointed rebukes.
3
1030 Harvard Journal of Law & Public Policy Vol. 46
For all the twitter Common Good Constitutionalism has generated,
its ingredients—excepting the Thomist twist—are hardly exotic.
Burkeans have maintained for decades that institutions have both
intrinsic and instrumental value.
4
It’s in there. Crits, and before
them, the Legal Realists, wrote volumes insisting that private coer-
cion can be as menacing as public coercion.
5
That’s in there too. In-
deed, one can thumb through the major insights of both conserva-
tive and liberal legal scholars over the last century, and close to all
of them are recognizable in Vermeule’s critique of our existing con-
stitutional order. This is not to say that Common Good Constitution-
alism’s combination isn’t fresh. It’s just to say that, in large part, it’s
a fusion of different schools that have been talking past each other
for the last twenty years, heavily marinated in Catholic legal
thought.
But one can appreciate the brio of Vermeule’s book, cheer its Mer-
cutian disdain for the left and right, and still be concerned about its
substance. Vermeule offers common good constitutionalism as
more than a rejoinder to originalism and progressive
Linda C. McClain, Reasons to Doubt Whether “the Best Way Forward Is To Look Backward”:
Commentary on Adrian Vermeule, Common Good Constitutionalism, BALKINIZATION (July
12, 2022), balkin.blogspot.com/2022/07/reasons-to-doubt-whether-best-
way.html [https://perma.cc/3ZNH-CDYV]; William H. Pryor, Against Living Common
Goodism, fedsoc.org/commentary/publications/against-living-common-
goodism [https://perma.cc/AM3J-EQ48]; Garrett Epps, Common-Good Constitutionalism
Is an Idea as Dangerous as They Come, THE ATLANTIC (April 3, 2020), www.theat-
lantic.com/ideas/archive/2020/04/common-good-constitutionalism-dangerous-
idea/609385/ [https://perma.cc/8BMU-LTY7]. For a defense of common good constitu-
tionalism against charges of authoritarianism, see generally Conor Casey, “Common Good
Constitutionalism” and the New Battle of Constitutional Interpretation in the United States, 4
PUB. L. 765 (2021).
4. Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional
Interpretation, 72 N.C. L. REV. 619, 649 (1994) (“[I]nstitutional arrangements reflect the
accumulated wisdom of centuries of political decisions.”).
5. See Angela P. Harris, Theorizing Class, Gender, and the Law: Three Approaches, L. &
CONTEMP. PROBS. 37, 38 (2009) (“Legal Realists pointed out long ago, there is no such
thing as a ‘free market’ without the backstop of state coercion to enforce private prom-
ises.”).
2023 Common Good Gun Rights 1031
constitutionalism; it is supposed to supply, in the Dworkinian
sense,
6
the “right” answer to legal questions. Perhaps not in the
sense of specifying a precise numerical value for the minimum
wage,
7
but certainly in the sense of articulating the conditions un-
der which a specific interpretation of a minimum wage law can be
deemed correct.
8
Rising to the challenge, I offer a thought experiment to test how
common good constitutionalism works as a theory: common good
gun rights.
9
I choose gun rights as an area to apply Vermeule’s ap-
proach because Second Amendment theory is still inchoate, its
precedent thin, and it’s an area with which I have some familiarity.
Imagining a common good constitutionalist’s answers to the welter
of unanswered questions in Second Amendment doctrine is a per-
fect beta test for how well common good constitutionalism can pre-
scribe as much as criticize. I conclude that common good constitu-
tionalism does provide a method for deciding whether a Second
Amendment opinion is correct, albeit in a way that does not neatly
map onto current ideological arrangements.
The rest of this Article proceeds as follows: Part I outlines four
contentions of common good constitutionalism—its critique of the
private-public distinction; its understanding of institutions; its con-
ception of rights; and its belief in law’s inherent normativity—and
connects them to some familiar theoretical disputes about law. Part
II applies these four aspects of common good constitutionalism, in
roughly reverse order, to pending issues of Second Amendment
1032 Harvard Journal of Law & Public Policy Vol. 46
doctrine after New York State Rifle & Pistol Ass’n v. Bruen.
10
The last
part offers some concluding remarks.
I. THE FAMILIAR INGREDIENTS OF COMMON GOOD
CONSTITUTIONALISM
The composition of Vermeule’s Common Good Constitutionalism is
new, but it hits notes that have been the stock of public law com-
mentary for a century. I focus on four: skepticism of the public-pri-
vate distinction; understanding of institutions in their own right,
and not solely as preference aggregates; hostility to the “rights as
trumps” frame of constitutional law; and the belief that law is ine-
luctably normative, which requires constitutional actors to confront
moral claims about the Constitution.
A. Skepticism of the Public-Private Distinction
Vermeule appears skeptical of the jurisprudential foundations of
modern state action doctrine and its normative desirability. Con-
sider this passage:
[C]onstitutional theory often takes a libertarian form that becomes
obsessed with the risks of abuse of power created by state organs
in particular, while overlooking the risks of abuse of power that
public authorities prevent through vigorous government. . . . The
state, narrowly understood as the official organs of government,
is hardly the only source of abuses. Actors empowered directly or
indirectly by law—including the property entitlements of
corporate law and common law—may abuse their power
throughout the society and economy.
11
2023 Common Good Gun Rights 1033
A passage like this could have been written a century ago by legal
realists such as Morris Cohen,
12
Robert Hale,
13
or Louis Jaffe,
14
to
name just a few. Indeed, Vermeule acknowledges his intellectual
debt to Hale and the Realists in the text.
15
Yet, one need not go back one hundred years to Columbia or Har-
vard Law School to find such sentiments. Mavens of critical legal
studies, including feminist and critical race approaches, have been
making similar observations about this distinction since the late
twentieth century.
16
In the 1980s, Professor Duncan Kennedy pro-
nounced an inability “to take the public/private distinction seri-
ously as a description, as an explanation, or as a justification of
anything.”
17
Professor Frances Olsen in 1993 castigated how “soci-
ety draws distinctions between public and private [that] perpetu-
ate[] the subordination of women.”
18
And again, more recently,
Professor Emily Houh has remarked how “critical race realism
seeks to deconstruct explicitly the public/private distinction where
that distinction masks and enables conditions of subordination.”
19
1034 Harvard Journal of Law & Public Policy Vol. 46
Vermeule writes that “[i]t is a mistake to focus myopically on di-
rect abuses of power by officials themselves, as opposed to indirect
abuses of power made possible by the law.”
20
Again, this is a spe-
cies of the public-private dichotomy, framed as the action-inaction
distinction. And again, this kind of observation is very familiar to
those in the critical legal studies tradition.
21
It appears that in some
select areas—especially dealing with information platforms and so-
cial media—otherwise committed conservatives and professed
originalists have made common cause with liberals and progres-
sives for this kind of approach.
22
Vermeule’s common good constitutionalist approach provides a
classical legal underpinning as to why the boundaries between the
public and private spheres should be more permeable than they’ve
developed over the past century of American constitutional law.
B. Institutions Matter
Vermeule insists that institutions—in the broadest sense of that
term—have value and cannot be reduced to the aggregated prefer-
ences of institutional stakeholders. This is another feature that
also Angela P. Harris, Rereading Punitive Damages: Beyond the Public/Private Distinction,
40 ALA. L. REV. 1079, 1098 (1989) (“The [public/private] distinction is no longer viewed
as somehow natural or inevitable.”).
20. VERMEULE, supra note 1, at 14.
21. Susan Bandes, The Negative Constitution: A Critique, 88 MICH. L. REV. 2271, 2279
(1990) (“[T]he distinction between action and inaction is far too arbitrary and simplistic
to describe the complex web of acts and omissions through which government con-
ducts its business.”); Susan D. Carle, Debunking the Myth of Civil Rights Liberalism: Vi-
sions of Racial Justice in the Thought of T. Thomas Fortune, 1880-1890, 77 FORDHAM L. REV.
1479, 1508 (2009) (describing early arguments that “state inaction had the result of
denying inherent political and civil rights on account of race just as profoundly as
might acts of state action” as harbingers of critical legal and critical race critiques of this
distinction).
22. NetChoice, L.L.C. v. Paxton, 49 F.4th 439, 445 (5th Cir. 2022) (“Today we reject
the idea that corporations have a freewheeling First Amendment right to censor what
people say.”). But see NetChoice, LLC v. Att'y Gen., Fla., 34 F.4th 1196, 1203 (11th Cir.
2022) (“We hold that it is substantially likely that social-media companies—even the
biggest ones—are ‘private actors’ whose rights the First Amendment protects . . . .”).
2023 Common Good Gun Rights 1035
common good constitutionalism shares with prior critiques of
American constitutional jurisprudence.
Consider how Vermeule describes marriage: “Marriage is not
(merely) a civil convention, a mere corporate form created by the
civil authority to allocate some package of legal benefits. It is a nat-
ural and moral and legal reality simultaneously.”
23
Or how he un-
derstands federalism: “The values attributed to federalism are, in
many cases, really values of subsidiarity and civil society: they are
benefits of local or city government, of professional groups and
trade associations, and of other civil society corporations. . . .”
24
Even the Constitution itself is subject to this institutional lens. The
common good constitution in Vermeule’s model is not a meager
assemblage of a little over seven thousand words, but “a concrete
set of real, extratextual, political institutions, arrangements and
ever-changing norms, unwritten in crucial respects.”
25
This seems descriptively correct, even if his conclusion about
Obergefell strikes me as morally blinkered. We don’t usually think
of marriage just as a set of arms-length transactions that can be rep-
licated through contractual agreements;
26
this is why giving to same
sex couples the dignity of the name marriage is essential.
27
In a sim-
ilar vein, we don’t typically think of a university or a synagogue as
just a nexus of contracts.
28
And there are all types of written and
1036 Harvard Journal of Law & Public Policy Vol. 46
unwritten norms, conventions, and customs that glue these and
other political and social institutions together and give them a char-
acter that goes far beyond just a “sum of [their] parts.”
29
Here again, Vermeule marches lock-step with thinkers on both
the left and the right, both old and new. Burkeans for decades have
extolled the virtues of well-established institutions.
30
The entire lit-
erature on corporate personhood is constantly reckoning with the
sociological reality that corporations are hard to understand only
as aggregations of innumerable arms-length transactions.
31
Dean
Heather Gerken has written about “federalism all the way down”—
the intermediary and intermediating organizations that have value
and purpose in their own right.
32
And arch-Realist Karl Llewellyn
offered similar arguments in his article The Constitution as an Insti-
tution when he described our Constitution as not only a text but
2023 Common Good Gun Rights 1037
also a set of practices, customs, attitudes, and assumptions that are
loosely coordinated to the written document.
33
C. Rights Are Not Trumps
Another critique common good constitutionalism shares with
previous theories is doubt that the “rights as trumps” frame is nor-
matively desirable or descriptively accurate. The rights as trumps
terminology entered the constitutional lexicon with Ronald
Dworkin a quarter-century ago,
34
and has dominated the discourse
ever since. The typical approach to constitutional rights within this
frame is that of judicial displacement: the metes and bounds of the
right occupy the field, and considerations of politics or general wel-
fare are simply irrelevant to the legality of the regulation.
35
This framing for constitutional rights has been under sustained
criticism for decades, and Vermeule has joined the skeptics. As Ver-
meule writes: “rights exist to serve, and are delimited by, a concep-
tion of justice that is itself ordered to the common good.”
36
It’s not
that there’s no rights; it’s that rights are not designed to “maximize
the autonomy of each person” but are, instead, “component parts
of the common good and contributors to it.”
37
In this sense, Vermeule sounds very much like his rough contem-
porary, Professor Richard Pildes, who challenged the rights as
trumps framing over two decades ago. As Pildes wrote, rights are
not trumps so much as they are means of “construct[ing] . . . a
1038 Harvard Journal of Law & Public Policy Vol. 46
political culture with a specific kind of character.”
38
Rights “re-
aliz[e] certain collective interests; [and] their content is necessarily
defined with reference to those interests. . . .”
39
In sum, “the justifi-
cation for many constitutional rights cannot be reduced to the at-
omistic interest of the right holder alone.”
40
Rights have a function
of “realizing various common goods through the work they do to
protect the integrity of distinct common goods, such as democratic
self-governance, public education, religion, and other domains.”
41
To which, Vermeule might add, “health, safety, and economic se-
curity.”
42
In the more recent past, Professors Jamal Greene and Jud Camp-
bell have sounded similar themes, from different perspectives:
Greene as a matter of jurisprudence; Campbell as a matter of his-
tory.
Greene writes that rights should be subject to proportionality
analysis, which “sharpens the government's ends and means to
those that are necessary to vindicate its interests and are respectful
of the impact on individuals.”
43
Constitutional law, under this
view, “does not treat rights as trumps, but neither does it simply
subject them to utilitarian balancing. Its aim is to take individual
rights, the government’s reasons, and the government's methods
for no more and no less than they are worth.”
44
Vermeule seems to agree when he says the correct way to think
about rights “is not that the individual’s rights are ‘overridden’ by
collective interests. It is that rights are always already grounded in
and justified by what is due to each person and to the commu-
nity.”
45
Making them proportional—“adjusting them” in
2023 Common Good Gun Rights 1039
Vermeule’s terminology—“is to unfold their true nature . . . not to
compromise or overpower them.”
46
Jud Campbell, whom Vermeule cites with approval, has come to
a similar conclusion, drawing upon the understanding of natural
rights at the Founding. Rights were not trumps, in the modern
sense of “determinate legal privileges or immunities.” Instead, nat-
ural rights were a “mode of reasoning”, the ambition of which was
“to create a representative government that best served the public
good.”
47
In this way, “Founding-Era natural rights were not really
‘rights’ at all, in the modern sense. They were the philosophical pil-
lars of republican government.”
48
Common good constitutionalism is the latest entrant in a multi-
generational effort by those on the left and the right to recover a
more subtle, and accurate, understanding of rights in the American
legal tradition, and to rescue our constitutional vocabulary from its
incessant lapse into “rights talk.”
49
D. Law is Normative
Finally, Vermeule, like Dworkin, like Martin Luther King,
50
and
like natural law theorists before them, is dubious that law can be
separated from morality. As Vermeule writes, “[c]ommon good
constitutionalism shares the view that the positive provisions of the
ius civile, including at the constitutional level, can only be inter-
preted in light of principles of political morality that are themselves
part of the law.”
51
Vermeule follows Dworkin in this regard, and
1040 Harvard Journal of Law & Public Policy Vol. 46
it’s this proposition that has generated the most hostility from pos-
itivists on both the left and the right.
52
However, even this divergence between Vermeule’s theory of
law’s normativity and those of other thinkers may appear wider
than it actually is. Consider what Lawrence Lessig wrote many dec-
ades ago in response to Justice Robert Jackson’s oft-quoted line in
Barnette: “If there is any fixed star in our constitutional constella-
tion, it is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of opin-
ion . . . .”
53
Nonsense, says Lessig,
[I]t has never been the case that “officials,” whether high or petty,
have been forbidden from prescribing “what shall be orthodox”
in politics, nationalism, and other matters of opinion: Think of the
government's view of unsafe sex, or abortion, or family values. . .
. Government has always and everywhere advanced the orthodox
by rewarding the believers and by segregating or punishing the
heretics. The permissible means for advancing such orthodoxy
may be limited, and the instances may be few, but the end has
always been the place of government.
54
It’s not that positivist accounts of law cannot include norma-
tivity—it’s that positivists reject the notion that law originates in, or
depends on, some objective theory of morality.
55
Vermeule, Lessig,
Raz, and Dworkin do not disagree that law dictates what is ortho-
dox and what is not; the grounds of disagreement are whether there
are moral grounds from within law to challenge the imposition of
any dictate as unlawful. Vermeule’s viewpoint is that there are first-
2023 Common Good Gun Rights 1041
order rules—grounded in the classical legal tradition—by which
one can decide whether second-order rules count as “law.”
Positivists blanch at this maneuver. Some, the inclusive positiv-
ists, try to make peace with it by assuming that moral considera-
tions can become part of the law as a descriptive reality.
56
Others,
the exclusive positivists, reject this proposition entirely.
57
Fellow
natural law theorists, like Dworkin, agree that law must ineluctably
include moral propositions; but then disagree with Vermeule about
the source of those moral propositions.
58
Vermeule would have the “ought” in law come from classical and
Catholic legal thought; Dworkin would have it come from princi-
ples of political morality and fit.
59
The inclusive positivists would
find the source of moral claims in law from sociological facts.
60
The
Austinians reduce the “ought” of the law to nothing more than the
command of the sovereign.
61
But none of these approaches would
say that law, to be law, can be agnostic as to orthodoxy.
II. COMMON GOOD GUN RIGHTS
Assuming that common good constitutionalism does as well in
delivering answers as in raising questions, how might a common
1042 Harvard Journal of Law & Public Policy Vol. 46
good constitutionalist examine gun rights and regulation post-
Bruen? This next section lays out the doctrinal landscape post-
Bruen, the questions Bruen left unresolved about text, analogy, and
levels of generality, and then articulates a potential common good
constitutionalist approach to these issues.
A. The Second Amendment after Bruen
Less than six months after Vermeule published Common Good
Constitutionalism, the Supreme Court of the United States upended
over a decade of lower-court precedent on the Second Amendment.
In New York State Rifle & Pistol Ass’n v. Bruen,
62
the Supreme Court,
in a 6-3 opinion authored by Justice Clarence Thomas, jettisoned
the prevailing two-part framework that lower courts had employed
to evaluate Second Amendment challenges since the watershed
District of Columbia v. Heller
63
decision, in favor of an approach that
focuses intensely on history and tradition.
Heller was the first Supreme Court case to hold that the right to
keep and bear arms protected a right to possess arms unrelated to
the participation or maintenance of a well-regulated, organized mi-
litia. In the wake of Heller, lower courts had scrambled to patch to-
gether some kind of workable doctrine from Heller’s often-enig-
matic passages. The two-part framework they assembled took the
form of a conventional mix of categoricalism and balancing.
64
A
court first asked whether the conduct or regulation even implicated
the Second Amendment.
65
Assuming it did, the court then pro-
ceeded to a conventional tiers-of-scrutiny analysis, which often, but
not exclusively, took the form of intermediate scrutiny.
66
Bruen dispensed with this approach. “Despite the popularity of
this two-step approach,” Justice Thomas wrote, “it is one step too
2023 Common Good Gun Rights 1043
many.”
67
Step one, according to the Court, was “broadly consistent
with Heller, which demands a test rooted in the Second Amend-
ment’s text, as informed by history.”
68
But the second step’s reliance
on conventional “means-end scrutiny” was unwarranted.
69
In its place, the Court articulated its own two-step approach: At
step one, a court asks if “the Second Amendment’s plain text covers
an individual's conduct,”
70
if it does, “the Constitution presump-
tively protects that conduct.”
71
The government is then obliged, at
step two, to “not simply posit that the regulation promotes an im-
portant interest. Rather, the government must demonstrate that the
regulation is consistent with this Nation’s historical tradition of
firearm regulation.”
72
Historical regulations that form part of this
tradition need not be a “twin” or “dead ringer”;
73
courts are allowed
to search for historical analogs, but these analogs must be “repre-
sentative” and “relevantly” similar.
74
Bruen shattered the lower court settlement on doctrine at a mo-
ment when the theory of the right to keep and bear arms was, and
has remained, tender. Although the Supreme Court minted an en-
forceable Second Amendment right just over a decade ago, Second
Amendment theory has remained in a state of relative adolescence.
Other than a largely unhelpful proposition that the Second Amend-
ment is related in some way to “self-defense,” there has been very
little in the way of rigorous and sustained attempts to articulate a
1044 Harvard Journal of Law & Public Policy Vol. 46
comprehensive theory of the Second Amendment.
75
Nothing like
the tomes of theorizing about the Equal Protection Clause, or Due
Process, or the First Amendment right to free expression exists for
the Second Amendment. And certainly, there is nothing at the fed-
eral level comparable to the piles of precedential cases adjudicating
disputes under these other constitutional provisions. Without a the-
ory of the Second Amendment and its goals, the textual and histor-
ical analysis in gun cases tends to careen into unguided casuistry.
76
Because the Second Amendment’s theoretical development is
slender and its binding precedent thin, it provides a fairly clear
field to test whether common good constitutionalism can work as a
method of constitutional jurisprudence.
B. Post-Bruen Puzzles and the Common Good Approach
One of the most urgent and perplexing problems Bruen loosed
upon lower courts is also one of the most familiar: at what level of
generality are we to understand the right to keep and bear arms?
77
Choosing the “right” level of generality has been a recurrent prob-
lem of jurisprudence, for which scholars have offered various
2023 Common Good Gun Rights 1045
solutions.
78
Almost always, it is presupposed that the choice of a
level of generality involves a value judgment.
79
Vermeule’s answer is that the level of generality should be the
one that promotes the “flourishing of a well-ordered political com-
munity.”
80
Specifically, constitutional decisions should be cali-
brated to ensure that public authority is capable of providing the
“common goods” of the classical legal tradition—“peace, justice
and abundance”—which he extrapolates to include “various forms
of health, safety and economic security.”
81
Common good constitutionalists could use this metric to guide
both prongs of the Bruen test: interpretation of text and the rele-
vance of historical analogs. In this sense, the text of the Second
Amendment must be understood in light of the classical legal tra-
dition of which—Vermeule says—it is a part. The words “people,”
“keep,” “bear,” and “arms” in the Second Amendment are not to
be understood at the broadest level of linguistic meaning; nor are
they to be understood in a narrow, technical sense; they are to be
applied at the level of generality that ensures that government is
able to provide the common goods of the classical legal tradition.
As to the second prong of the Bruen test, the evaluation of analogs
and tradition, the common good approach would consider a histor-
ical and modern regulation relevantly similar when they both can be
understood as designed to promote the common goods that a well-
ordered political community in the classical tradition is empow-
ered to provide.
1046 Harvard Journal of Law & Public Policy Vol. 46
Vermeule’s presumption about the purpose of constitutional
rights and the lawfulness of regulations has significant Second
Amendment implications. As explained below, it broadens the
scope of what the Second Amendment is “for” beyond just personal
self-defense, to something more like safety; it forces us to rethink
the gun-rights-as-trumps framing of Second Amendment chal-
lenges; it obliges us to be more sensitive to the institutional contexts
in which the right to keep and bear arms occurs; and it calls into
question the typical public-private distinction both as to gun regu-
lations and gun rights.
1. The Purpose of Gun Rights
Ask what the Second Amendment is “for” and you’ll usually get
some kind of response that it’s “for” self-defense. But this pur-
pose—at this level of generality—is clearly not born out in either
the existing doctrine or in logic. As I’ve mentioned elsewhere, there
are numerous people who may have rights to self-defense but no
rights to armed self-defense.
82
Minor children, the incarcerated, the
severely mentally ill—while all of these persons have rights to de-
fend themselves, none, it is usually thought, have a right to keep
and bear arms for that purpose.
Similarly, the proposition that there are some “sensitive places”
into which firearms may not be brought
83
belies the notion that the
Second Amendment is solely “for” self-defense. If, as Professor Eu-
gene Volokh wrote “[s]elf-defense . . . is something you must en-
gage in where and when the need arises,”
84
then the need is insen-
sitive to location. One can anticipate the “need” for self-defense
arising just as easily at a presidential address, on board a passenger
plane, in a judge’s courtroom, or in a legislative chamber.
The Second Amendment is and must be “for” something far more
nuanced than just self-preservation. It must be about providing
2023 Common Good Gun Rights 1047
safety.
85
And not just safety in the atomized sense of personal phys-
ical safety, but safety for society. Moreover, this safety is not limited
to safety in the sense of physical safety, but safety in the sense of
the “flourishing of a well-ordered political community” capable of
supplying the classical common goods of “peace, justice and abun-
dance.”
86
Hence, rather than focus on whether a particular regulation or
practice promotes or inhibits individual self-defense, or whether
some undirected aggregation of individuals with the right to bear
arms contributes to the physical well-being of the community; the
common good constitutionalist would ask whether the particular
construction of the right promotes or inhibits the public provision
of safety, broadly understood according to the terms of the classical
tradition.
2. Gun Rights as Trumps
Understanding the Second Amendment as designed for some-
thing more nuanced than “self-defense” means rethinking the gun-
rights-as-trumps framework. Currently, gun rights and regulation
are thought of as antonyms—a “zero-sum game” between rights on
the one hand and police power on the other.
87
Common good constitutionalism would have us reevaluate this
dynamic. It’s not that regulation “outweighs” gun rights; or that
gun rights “trump” regulation. It’s that the very definition of the
right to keep and bear arms is to be understood by reference to the
classical legal tradition of what is owed to each individual and to
the community as a whole.
88
Such a rethinking, according to
1048 Harvard Journal of Law & Public Policy Vol. 46
Vermeule, would recover what Jud Campbell argues was the orig-
inal understanding of natural rights at the Founding, which was the
means to provide “good government, not necessarily less govern-
ment.”
89
As noted above, rethinking of the rights frame along the lines of
the classical legal tradition would implicate both prongs of the
Bruen test. Justice Thomas in Bruen says that the test for whether
something implicates the Second Amendment is not just the strict
grammatical meaning of the Second Amendment’s text, but its
“text, as informed by history.”
90
That history, a common good con-
stitutionalist might argue, includes the classical legal tradition.
Accordingly, in this common good constitutionalist vein, when-
ever a judge considers whether a particular activity is preemptively
protected by the Second Amendment, the question is not whether
the interpretation of the words “people,” “keep,” “bear,” or “arms”
contributes to an atomized, individualistic expression of rights; in-
stead, the level of generality of these terms are calibrated to
whether they contribute to the natural law tradition of the Found-
ing—the flourishing of the “well-ordered political community” and
the provision of the public good of safety.
The same approach applies to the level of generality at which to
examine historical regulations. Currently, post-Bruen litigants and
judges go on quixotic searches for historical analogs to prohibitions
of guns in the hands of domestic abusers,
91
or those under felony
indictment,
92
or at summer camps.
93
Common good
2023 Common Good Gun Rights 1049
constitutionalism would reject these efforts as a fool’s errand. The
level of generality to look for an analog is not something like an
eighteenth-century summer camp, but whether the modern and
historical regulation is designed to promote safety and abundance
in the political community, broadly defined.
3. Institutional Gun Rights
On the common good constitutionalist view, institutions, ori-
ented to the public good, are valuable in themselves. Such a view
complicates the often-clumsy “rights versus regulation” posturing
of gun rights litigation. Instead, every assertion of a gun right must
be understood within the institutional context in which it is as-
serted. I’m on the record as saying that the Court is going to have
to approach Second Amendment questions in a more institution-
sensitive frame.
94
A common good approach is consonant with
more solicitude for the institutions that both enable and constrain
the right to keep and bear arms.
So, for example, a common good constitutionalist approach
would understand that claims of a right to keep and bear arms are
often intermixed and can conflict with other deeply rooted institu-
tions with their own essential character that must also be pre-
served.
95
This changes, for example, how one may look at prohibi-
tions on firearms in houses of worship. Such regulations are not just
about maximizing the personal safety of the worshippers; nor are
they simply a manifestation of a general police power. Instead, a
common good constitutionalist approach would examine both the
right and the regulation by reference to the traditions and customs
1050 Harvard Journal of Law & Public Policy Vol. 46
of places of collective worship as institutions of a specific character
in our constitutional culture.
96
The same kind of analysis could apply when we think of other
kinds of institutions, whether they be educational,
97
political,
98
or
municipal.
99
A common good constitutionalist approach recognizes
these institutions as something more than mere aggregations of in-
dividual rights-holders; and it recognizes these institutions’ role in
facilitating and constraining rights in a way that is more nuanced
than the liberty-maximizing framework of classical liberalism.
100
In-
stead, a common good constitutionalist would recognize that these
institutions—cities, churches, schools, clubs—have an independent
identity and function that shapes the contours of the right to keep
and bear arms and provides a way of guiding the level of generality
at which to assess Second Amendment challenges.
4. Gun Rights and the Private-Public Distinction
A common good constitutionalist approach to gun rights impli-
cates private regulation of firearms, but also private use of firearms.
Currently, there’s no coherent theory of firearms and private law.
101
The traditional private-public/action-inaction distinction prevails
in Second Amendment law, if not in Second Amendment politics.
So, for example, it remains a category error to say that a coffee shop
owner’s prohibition on firearms raises any Second Amendment
2023 Common Good Gun Rights 1051
issue.
102
It’s a similar mistake to argue that a private party’s use of
a firearm for self-defense in any way implicates state action.
Common good constitutionalism confounds this traditional de-
marcation. On the one hand, it would mean that nominally “pri-
vate” institutions and decisions, left unchecked or unregulated by
government, must be evaluated by reference to whether they pro-
mote or frustrate the public goods of safety, peace, justice, and
abundance. The easiest application of this frame would be to dis-
putes over whether public housing can impose rules against the
keeping and bearing of arms.
103
But the implications of this ap-
proach are much broader and could frame the ability of private
businesses to ban firearms from their parking lots, corporate
choices to divest from the gun industry, and related issues.
By the same token, however, a common good constitutionalist
would need to re-think both the practice and the effect of private
arms bearing for self-defense. The predominant classical liberal
conception of the Second Amendment contemplates a “market-
place of violence” where both the tools and the power to deploy
violence are democratized as matter of right.
104
In this vision, there
will be bad uses of guns and good uses of guns; but the invisible
hand of the market will lead to a desirable equilibrium that benefits
everyone.
105
To those that hold this classical liberal view, the answer
to the bad uses of guns is more gun rights, not less.
106
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Common good constitutionalism is skeptical that this unregu-
lated model is consonant with the classical tradition or that it is nor-
matively desirable. The premise of constitutional rights, to the com-
mon good constitutionalist, is to calibrate the right through the lens
of what is good both for the individual and for the community.
Therefore, regulations designed to mediate the good for the indi-
vidual and the community—like training and proficiency require-
ments, or insurance mandates, or guarantees of capacity or virtue
in order to carry firearms—would have to be viewed not by refer-
ence to whether they impinge upon individual self-defense, but
whether they are geared towards making certain the private pos-
session, carriage, and use of deadly weapons contribute to the com-
mon good.
CONCLUSION
I’ve offered a thought experiment about what a common good
constitutionalist’s approach to the Second Amendment may look
like.
107
Neither time nor space permit a full accounting of every dis-
crete Second Amendment issue still unresolved after Bruen. Follow-
ing Vermeule’s caution, I do not see common good constitutional-
ism as providing answers to specifics about how many hours of
training for a concealed carry license is constitutional, or how many
rounds must be available in a magazine under the Second Amend-
ment, or how much private land must be available for individuals
to carry a firearm. Instead, I understand Vermeule’s common good
constitutionalism as providing what Professor Stephen Sachs has
with a Gun’ in Every School (NY Times, Dec 21, 2012), [http://perma.cc/XXE2-NKWF]
(quoting NRA Executive Vice President LaPierre).
107. Although I’ve applied elements of the foregoing analysis from sources prior to
Vermeule writing his book, see e.g., Miller, Institutions, supra note 94, I’ll reiterate that
this essay is not intended to be prescriptive as much as evaluative; it’s a way of putting
common good constitutionalism through its paces to see if it’s a functional theory of
constitutional interpretation.
2023 Common Good Gun Rights 1053
said is on offer with originalism—rules for deciding whether any
given result is “right.”
108
I know a little about the Second Amendment and firearms law.
And thinking through a common good constitutionalist’s approach
to that topic is useful, if only to reveal how it can potentially reshuf-
fle some fairly entrenched ideological positions. How common
good constitutionalism could guide decisions on other politically
divisive issues like abortion, climate change, religious freedom, or
executive power, I leave to others. My deep reservations about
common good constitutionalism—given the potential for, and real-
ity of, bad men—I must, for now, keep to myself.