William Araiza’s insightful article, Arming the Second Amendment, has one essential, hidden component: dignity. Dignity helps explain the peculiar hydraulics of Congress’s power to enforce section five of the Fourteenth Amendment—a jurisprudence in which the less scrutiny the Court itself applies to a given class or right, the more scrutiny it applies to congressional efforts to protect that same class or right. Dignity helps explain the Court’s halting approach to Reconstruction Amendment enforcement power more generally – an approach in which constitutional versus unconstitutional legislation turns on seemingly insignificant regulatory distinctions. And dignity’s role in § 5 enforcement helps explain the efforts of gun rights advocates to portray themselves as disempowered and despised members of a subordinate class. Araiza has cogently broken down the complicated mechanics of the Court’s equal protection, substantive rights, and § 5 enforcement power jurisprudence, but it is notions of dignity that seems to drive this particular constitutional engine.
Dignity and Second Amendment Enforcement – Response to William D. Araiza’s, Arming the Second Amendment and Enforcing the Fourteenth
Darrell A. H. Miller
July 13, 2018