In short, the 14th amendment INTENDED incorporation, and a 2nd amendment right was one of the prime rights intended to be so incorporated against the states.

Your proposal is a political compromise, not a constitutionally appropriate answer.

As John R. Lott, Jr. in his book “More Guns, Less Crime” has proven, guns in the hands of law-abiding citizens has reduced crime because the criminals don’t know who is armed and who isn’t. In D.C. people being robbed at gunpoint in broad daylight is common, as it also is in New York, Boston, and Chicago. This is presumably because the criminals have no fear that the citizen will be armed and able to defend themselves. I live in New Orleans, recently determined to be the deadliest city in America, and if you go out regularly in the city after dark without a weapon, you simply don’t value your own life.

Take the revolution in “shall issue” licensed concealed carry of handguns that has swept almost 40 states. In many of those states (e.g., MO, KS) concealed carry won legislative supermajorities strong enough to override the governor’s veto. How was that about hunting?

There are still many, many hunters out there (a fine thing, in my view), but some of the most vocal, committed gun rights supporters come from the ranks of the suburban/exurban plinkers and defensive shooters. Look at the blogosphere.

More generally, your post and your comment tend to attribute agency in the field of gun rights advocacy not to individual Americans, but to “the NRA,” “NRA dollars,” “the NRA effectively stok[ing] … anxiety,” etc., etc. This picture is highly inadequate, unless you mean “NRA” as a shorthand for the organization’s millions of members.

While I know you don’t intend this, the view of gun rights supporters as NRA puppets has just a whiff about it of the Washington Post’s infamous reference to evangelical Christians as “poor, uneducated and easily led.”

[A] developed Second Amendment jurisprudence will produce loads of litigation as cities and states attempt to figure out what sorts of regulation are acceptable. (original post)

Not if the Amendment confers an unincorporated individual right. Then it’s just a limit on the feds and D.C. There’s a serious argument that this position is already implicit in the structure of American firearms regulation. As you point out, there are severe restrictions on guns in a number of U.S. states and municipalities, but federal regulation (while far from trivial) is more permissive, and proposals for new federal restrictions face tenacious opposition.

As long as the battle stays in the legislatures, gun control opponents don’t have to fight the second front: antimajoritarian interference by courts.

Nah, a vigorous 2A is a no-lose proposition for gun rights advocates. If they lose in the courts, fall back on the legislature and they’re no worse off than they are now with judicial nonenforcement of arms rights.

It will also create a bit more confusion across political lines by further showing how an “activist court” can both produce Roe v. Wade and the freedom to pack.

First, just to keep clear, Parker isn’t about “freedom to pack,” it’s about the baseline freedom to keep a functional defensive firearm in one’s own home. Second, I suspect most conservatives will distinguish Roe from Parker and future cases on the basis of textualism. At the simplest level, the document speaks of a “right of the people to keep and bear arms,” while it doesn’t refer to abortion at all. There is, of course, room for argument about how broadly the Second Amendment right sweeps, the effect of the prefatory clause, etc., but even the most aggressive versions of 2A review would seem to fall short of the level of activism in Roe.

If anything, the courts face a legitimacy problem that cuts in the other direction. How can they justify (in terms that are not crassly political) a refusal to apply the Second Amendment in some kind of fairly vigorous fashion, given the elaborate counter-majoritarian structures they’ve built upon the Establishment Clause (which doesn’t even refer to a “right of the People”) and, in Judge Kozinski’s phrase, upon “the white spaces between lines of constitutional text” such as the Due Process Clause.

In the past decade, coalitions of liberal and textualist-originalist Supreme Court Justices have come together to breathe new life into the Confrontation and Jury Trial Clauses. Great stuff. Why not the Second Amendment?

As for the hunting part, I would bet – and bettors can be wrong – that the majority of people who highly value the Second Amendment (and back that commitment with dollars) have hunted in the last five years. There will always be others who find the issue compelling, but I suspect they are not the backbone of the movement.

If we are interested in defusing cultural conflict over guns, it seems to me that the best way to achieve it is for the Supreme Court to affirm Parker in its entirety, adopt a strong individual-rights conception of the Second Amendment, but decline to incorporate it against state and local governments.

That is, interpret the Second as a federalism provision — not in the “collective rights” sense that renders it a nullity, but analogously to the way that the Court interpreted the Commerce Clause in Lopez and Morrison. Those cases make clear that affected individuals can bring suit to invalidate federal laws that exceed Congress’s enumerated powers under Article I, even though such laws would clearly be valid if enacted by a state government. Treat the Second Amendment the same way, as marking the legitimate boundary between national and local authority.

In short, your line of reasoning suggests that the federal courts should (1) put Congress decisively out of the business of passing further gun control legislation; (2) peel back a few particularly abusive provisions of existing federal law; and then (3) let things go on as they are now. Chicago, NYC, and California keep their various gun bans. Floridians and Oklahomans keep their state constitutional rights to keep and bear arms, their liberal concealed-carry laws, their pro-self-defense criminal codes, and their possession of serious modern defensive firearms.

(As a purely descriptive matter, I would add that gun ownership in America isn’t just about “hunting” and hasn’t been for a long time. Visit a local gun range sometime. Go to a big box sporting goods store and watch the types of ammo people buy. Or ask the dozens of Democratic Congressional reps who lost their jobs because of the now expired 1994 semi-auto ban.)

So, adopt a strong, non-incorporated Second Amendment. The states and municipalities work things out according to local cultural values, and the collective political temperature in Congress drops several degrees. A lot of American gun owners suddenly feel free to support Democrats for Congress and the Presidency. No more 1994s.

How’s that sound?

The second amendment is not about hunting; it never was. It was about “the people” and their right to common defense and to deter tyranny by being armed. Period.

No one is advocating that, of course, certainly not in any imaginable sense given the current political climate. Elections still work, courts still function, the 1st amendment is still alive and well. Of the four boxes America is built on (ballot, jury, soap, and ammo), the fourth is to be opened only with great caution, and only after the first three are no longer available. It is, however, the deterrent effect of the fourth that keeps the first three operating, in large part.

Remember: the 2nd amendment ultimately guarantees all the others.

If we are to hold otherwise, the rest of the Bill of Rights is at risk. And we are done.