The Hidden Second Amendment Framework within District of Columbia v. Heller

Abstract: Title of Dissertation: CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA Michael Odell Spivey, Doctor of Philosophy, 2015 Dissertation Directed by: Professor Wayne McIntosh Department of Government and Politics The notion of a “culture war” has become a fixture in the academic writing about current American politics, in the popular press and in the cultural zeitgeist. Theorists have suggested that there is a cultural fault line dividing cultural progressives and religious traditionalists. This fault line, it is argued, stems from a basic epistemological disagreement as to whether there is transcendent “truth.” According to James Davidson Hunter, these different worldviews lead to policy polarization and cultural warfare. Hunter goes on to suggest that courts (and especially the Supreme Court) are focal points for this conflict. This work analyzes the nature and scope of battles over culture war issues in the United Supreme Court. It relies on a popular description of key culture war issues: God, guns and gays. The Supreme Court’s treatment of each of these issues is analyzed in turn. In addition, the Supreme Court’s abortion jurisprudence is also examined. With respect to each issue, key Supreme Court cases are identified. The briefs filed by the parties are then summarized and coded, identifying key “modalities” of arguments and specific arguments themselves. All amicus briefs are similarly analyzed and coded. The key Supreme Court decisions are then analyzed in light of arguments raised by parties and amici. Based upon this analysis, it appears that there is not one culture war but rather an interrelated set of cultural battles. Relatedly, there has been an evolution of cultural warfare over time. Some issues have become largely settled (at least within the Court’s jurisprudence); others are on their way to being settled and still others present continuing opportunities for cultural clashes. The work concludes by suggesting that the sexual revolution lies at the heart of cultural warfare. Moreover, cultural battles are over the “meaning” of America, that is, what social values will be protected under law. CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA by Michael Odell Spivey Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park in partial fulfillment of the requirements for the degree of Doctor of Philosophy 2015 Advisory Committee: Professor Wayne McIntosh, Chair Professor Karen Kaufmann Professor Frances Lee Professor Irwin Morris Professor Susan Dwyer ©Copyright by Michael Odell Spivey 2015

Abstract: The Second Amendment has gone from a rarely invoked constitutional provision to being one of the most hotly contested and politically charged protections of the Bill of Rights. Additionally, small government advocates have used local gun laws as a mechanism for challenging broad government regulation while conversely advocating for states’ rights, with Alaska recently joining a series of states seeking to expand local gun rights by passing state laws that nullify federal gun laws. Given Supreme Court case law and as demonstrated by recent Ninth Circuit precedent, the nullification course is almost certainly ill fated. Apart from the big government/small government proxy war being waged through local gun laws, others see the local, traditional character of the right to bear arms in a particular place as the most appropriate manner for scrutinizing regulation, given Supreme Court precedent and historic tradition. Copyright © 2016 by John Hill. * J.D., Duke University School of Law, 2016. Many thanks to Professors Darrell Miller and Joseph Blocher for sparking my interest in the Second Amendment and gun regulation and for providing generous feedback and guidance throughout this process; to my colleagues at the Alaska Law Review for their diligent and thoughtful commentary; to Dorothy for her patience and encouragement; and finally, to my mother for her constant love and support, and my father for imparting to me enduring inspiration and unquenchable curiosity. ARTICLE 5 HILL (DO NOT DELETE) 6/17/2016 2:46 PM 126 ALASKA LAW REVIEW [33:1

Abstract: Title of Dissertation: CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA Michael Odell Spivey, Doctor of Philosophy, 2015 Dissertation Directed by: Professor Wayne McIntosh Department of Government and Politics The notion of a “culture war” has become a fixture in the academic writing about current American politics, in the popular press and in the cultural zeitgeist. Theorists have suggested that there is a cultural fault line dividing cultural progressives and religious traditionalists. This fault line, it is argued, stems from a basic epistemological disagreement as to whether there is transcendent “truth.” According to James Davidson Hunter, these different worldviews lead to policy polarization and cultural warfare. Hunter goes on to suggest that courts (and especially the Supreme Court) are focal points for this conflict. This work analyzes the nature and scope of battles over culture war issues in the United Supreme Court. It relies on a popular description of key culture war issues: God, guns and gays. The Supreme Court’s treatment of each of these issues is analyzed in turn. In addition, the Supreme Court’s abortion jurisprudence is also examined. With respect to each issue, key Supreme Court cases are identified. The briefs filed by the parties are then summarized and coded, identifying key “modalities” of arguments and specific arguments themselves. All amicus briefs are similarly analyzed and coded. The key Supreme Court decisions are then analyzed in light of arguments raised by parties and amici. Based upon this analysis, it appears that there is not one culture war but rather an interrelated set of cultural battles. Relatedly, there has been an evolution of cultural warfare over time. Some issues have become largely settled (at least within the Court’s jurisprudence); others are on their way to being settled and still others present continuing opportunities for cultural clashes. The work concludes by suggesting that the sexual revolution lies at the heart of cultural warfare. Moreover, cultural battles are over the “meaning” of America, that is, what social values will be protected under law. CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA by Michael Odell Spivey Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park in partial fulfillment of the requirements for the degree of Doctor of Philosophy 2015 Advisory Committee: Professor Wayne McIntosh, Chair Professor Karen Kaufmann Professor Frances Lee Professor Irwin Morris Professor Susan Dwyer ©Copyright by Michael Odell Spivey 2015

Abstract: The Second Amendment has gone from a rarely invoked constitutional provision to being one of the most hotly contested and politically charged protections of the Bill of Rights. Additionally, small government advocates have used local gun laws as a mechanism for challenging broad government regulation while conversely advocating for states’ rights, with Alaska recently joining a series of states seeking to expand local gun rights by passing state laws that nullify federal gun laws. Given Supreme Court case law and as demonstrated by recent Ninth Circuit precedent, the nullification course is almost certainly ill fated. Apart from the big government/small government proxy war being waged through local gun laws, others see the local, traditional character of the right to bear arms in a particular place as the most appropriate manner for scrutinizing regulation, given Supreme Court precedent and historic tradition. Copyright © 2016 by John Hill. * J.D., Duke University School of Law, 2016. Many thanks to Professors Darrell Miller and Joseph Blocher for sparking my interest in the Second Amendment and gun regulation and for providing generous feedback and guidance throughout this process; to my colleagues at the Alaska Law Review for their diligent and thoughtful commentary; to Dorothy for her patience and encouragement; and finally, to my mother for her constant love and support, and my father for imparting to me enduring inspiration and unquenchable curiosity. ARTICLE 5 HILL (DO NOT DELETE) 6/17/2016 2:46 PM 126 ALASKA LAW REVIEW [33:1