The Embarrassing Second Amendment

Abstract

One of the best known pieces of American popular art in this century is the New Yorker cover by Saul Steinberg presenting a map of the United States as seen by a New Yorker. As most readers can no doubt recall, Manhattan dominates the map; everything west of the Hudson is more or less collapsed together and minimally displayed to the viewer. Steinberg's great cover depends for its force on the reality of what social psychologists call "cognitive maps." If one asks inhabitants ostensibly of the same cities to draw maps of that city, one will quickly discover that the images carried around in people's minds will vary by race, social class, and the like. What is true of maps of places-that they differ according to the perspectives of the mapmakers-is certainly true of all conceptual maps. To continue the map analogy, consider in this context the Bill of Rights: Is there an agreed upon "projection" of the concept? Is there even a canonical text of the Bill of Rights? Does it include the first eight, nine, t Charles Tilford McCormick Professor of Law, University of Texas Law School. This essay was initially prepared for delivery at a symposium on Interpretation and the Bill of Rights at Williams College on November 4, 1988. I am grateful for the thought and effort put into that conference by its organizer, Professor Mark Taylor. It was he who arranged for Wendy Brown, then a member of the Williams Department of Political Science, to deliver the excellent response that can be found following this article. A timely letter from Linda Kerber contributed to the reorganization of this article. Two long-distance friends and colleagues, Akhil Reed Amar and Stephen Siegel, contributed special and deeply appreciated insights and encouragement. Finally, as always, I took full advantage of several of my University of Texas Law School colleagues, including Jack Balkin, Douglas Laycock, and Lucas Powe. I should note that I wrote (and titled) this article before reading Nelson Lund's The Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 ALA. L. REV. 103 (1987), which begins, "The Second Amendment to the United States Constitution has become the most embarrassing provision of the Bill of Rights." I did hear Lund deliver a talk on the Second Amendment at the University of Texas Law School during the winter of 1987, which may have penetrated my consciousness more than I realized while drafting the article.

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