Chapter 1 surveys the landscape of federal and state efforts to effectuate gun control measures. The chapter theme is that in spite of extensive federal and state laws regulating the manufacture, marketing, distribution, sale, and use of firearms, these measures have proven ineffective to stem the tide of gun violence. The chapter reviews the extensive federal and state protection of consumers from defective and harmful products, noting that firearms lobbyists prevented Congress from subjecting the firearms industry to consumer protection regulatory oversight. Instead, the gun industry is subject to the oversight by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. The chapter discusses the history of federal gun regulation, discussing the National Firearms Act, the National Firearms Registration and Transfer Records, the Gun Control Act, the Firearm Owners Protection Act, the Violent Crime and Law Enforcement Act, the Federal Assault Weapons Ban, and the Law Enforcement Officers Safety Act. The chapter introduces the firearm industry immunity statute, the Protection of Lawful Commerce in Arms Act (PLCAA). The chapter concludes with a brief review of the Supreme Court’s recent Second Amendment jurisprudence that has served as a barrier to effective gun control.

This chapter shifts the focus from the “masses” to “elites” and examines state legislative roll call votes on bills dealing with school curriculum. It compares how states have approached the teaching of reading over time, a policy area once highly polarized (“This is worse than abortion.”) but now moving toward bipartisan consensus, to debates about the teaching of history and race. I argue that legislators, like voters, follow the cues of national partisan leaders, and that media narratives and coverage play a big role in how education issues become nationalized. That suggests that efforts by highly divisive national leaders to engage in “leadership” on education issues (akin to Kernell’s “Going Public” strategy) are likely to backfire and turn half of the country against their ideas. Importantly, polarization of education policies is not a one-way ratchet that is always increasing, as the reading controversy shows.

In this chapter, I conclude with a new framework for how to think about reforms designed to improve student academic achievement. My proposal focuses on (1) encouraging voters to care more about student outcomes and (2) shifting political power to adults with the most skin in the game in order to (3) try to align the electoral and political incentives of office holders with the interests of students. Specifically, I recommend holding school board elections “on-cycle” (in November of even years), making student achievement growth information more salient to both voters and parents, and increasing high-quality school choice options. Overall, I argue that future reforms should be evaluated based on how they impact student achievement, not how adults feel about them. Drawing on recent research on housing policy, I conclude that more democracy is not always better and that we should be open to reforms that modestly reduce local control if such reforms are likely to help students.

Chapter 5 explores in detail the largely failed attempts of plaintiffs’ lawyers representing victims of gun violence to sue firearms defendants after Congressional enactment of PLCAA in 2005. The chapter discusses two types of challenges that plaintiffs’ attorneys raised when gun defendants invoked PLCAA as an immunity shield from litigation. The first universe of challenges embraced various constitutional challenges including arguments based on the First, Fifth, Tenth, and Fourteenth Amendments; Article I of the Constitution; the Commerce Clause; separation of powers doctrine; state sovereignty; federalism; and the takings clause. The discussion then turns to an analysis of the plaintiffs’ repeated failures to pursue their firearms litigation by invoking the six PLCAA exceptions from immunity, including challenges based on negligent entrustment, negligence, negligence per se, design defect, failure to warn, breach of implied warranty of merchantability, and products liability. The chapter ends with an analysis of the plaintiffs’ attorneys repeated attempts to invoke PLCAA’s predicate statute exception, finally culminating successfully in the Connecticut Sandy Hook Elementary School firearms litigation.

Chapter Six contends that courts should apply a system of weak judicial review to protect individual rights. Most of the rights protected under current constitutional doctrine are included in the Covenant on Civil and Political Rights. The United States is a party to that treaty. Congress has the power to authorize judicial enforcement of those treaty rights. If Congress enacts such legislation, and courts practice constitutional avoidance in cases where judicial enforcement of treaties provides a substitute for judicial enforcement of the Constitution, the net result would be a system of weak judicial review. The proposed system would enable judicial protection for rights that is substantially equivalent to, and in some cases better than, the current system of strong judicial review. Moreover, with weak review, Congress could override judicial decisions with which it disagrees. The option for legislative override is necessary to restore the power of We the People to exercise control over our government, a core structural feature of the Constitution.

Chapter 7 narrates the story of Brooklyn state Senator Myrie Zellnor and describes how he determined to combat the gun violence crisis in his legislative district and throughout New York state by proposing an innovative firearms public nuisance statute tailored to PLCAA’s predicate statute exception. It indicates Myrie’s additional gun control legislative efforts. The chapter delineates the New York legislative process to enact its first-in-the-country firearms public nuisance statute, and the findings and provisions of that statute. The discussion describes the efforts of the New York state Attorney General Letitia James to enforce the statute to deal with the trafficking of ghost guns in the state. The discussion segues to an analysis of the New Jersey firearms public nuisance statute enacted one year after New York’s statute, and patterned on the New York statute. The chapter discusses in detail the ensuing unsuccessful litigation brought by the National Shooting Sports Foundation challenging the New York and New Jersey statutes on various constitutional grounds, including Commerce Clause and void-for- vagueness arguments.

This chapter surveys Supreme Court decisions involving the Second Amendment right “to keep and bear arms.” Nowhere is the current Court’s approach more originalist. Before 2008, the Court had never held that the Second Amendment protects a personal right to possess weapons unrelated to service in what the Amendment’s preamble characterizes as the need of “free states” for “a well-regulated militia.” This chapter describes events leading to the Court’s turnaround and analyzes its decisions since then. In applying other constitutional guarantees, the Court frequently asks whether restrictions are “narrowly tailored” to important or “compelling” governmental interests. By contrast, it insists that the permissibility of modern regulations of firearms depends exclusively on whether analogous restrictions were historically tolerated. In response to difficulties that the lower courts encountered in determining whether challenged regulations had historical analogues, the Court recently explained that precise factual similarity matters less than whether a modern restriction is “consistent with the principles that underpin our regulatory tradition.” Applying that test poses formidable challenges. But if the Court’s majority views its prescribed approach to defining Second Amendment rights as successful, it could imaginably extend its exclusive reliance on history and tradition to identify constitutional violations to other areas.

Most research on education governance begin with the premise that school boards are the natural default and that locally elected school boards must be defended. This chapter demonstrates why this assumption is wrong. I show that: (1) most voters don’t have school-aged kids and thus lack sufficient “skin in the game” to prioritize academic achievement; (2) voters don’t hold school board members accountable for student learning; and (3) local school board elections are uncompetitive, with nearly 80 percent of the turnover driven by incumbent retirements rather than Election Day defeats. Several case studies, focused on school districts in San Francisco (California) and Easta Ramapo (New York) illustrate why broken elections have negative impacts on education quality. At best, school board elections are extremely low-turnout affairs, in which a small and highly unrepresentative group of adults impose their parochial, self-interested, and often uninformed views on the rest of the community. At its worst, school district governance devolves into an absolute clown show, where performative politics takes precedence over serious policy meant to serve the academic interests of students.

This chapter traces a series of stark, occasionally stunning historical reversals by the Supreme Court in interpreting the Free Speech Clause. It highlights doctrines under which the Court treats almost all content-based regulation of speech as constitutionally suspect. That position, which draws little support from research into original constitutional understandings, reflects a commitment – increasingly embraced by conservative justices of a libertarian stripe – to the principle that the Free Speech Clause bars the government from censoring speech based on fears that the speech might prove persuasive to its audience. The resulting doctrine, which makes the United States an outlier among liberal democracies, provides robust protection for a good deal of “hate speech,” some outright lies, commercial advertising, and corporate expenditures to promote political candidates. This chapter also discusses cases that have held that the Free Speech Clause protects a right to “freedom of association” that lacks any clear textual basis. It concludes by considering cases involving speech rights in “managerial domains” in which the government performs functions, such as providing public education, that it could not perform successfully without engaging in content-based regulation of speech.

This chapter examines the Supreme Court’s historically evolving interpretation of the Equal Protection Clause, including its recent embrace of the view – initially uttered by a solitary dissenter in an 1896 decision in the case of Plessy v. Ferguson – that “[o]ur Constitution is color-blind.” In equal protection cases, the Court has rarely claimed originalist support for its decisions, even when effecting sharp changes of course, as in its iconic decision in Brown v. Board of Education (1954). In a recurring pattern, the Court’s leading equal protection decisions have condemned forms of discrimination –– first on the basis of race, then sex, and then sexual orientation –– only when public opinion began to view them as unjustifiably bigoted. This chapter analyzes the Court’s recent decision to invalidate practices of affirmative action in higher education that prior decisions had permitted for more than forty years. It also surveys a branch of equal protection doctrine that strictly scrutinizes deprivations of rights that the Court deems “fundamental” under the Equal Protection Clause, centrally including voting rights. It explains continuities, but also revealing disparities, between the approaches to voting rights of the liberal Warren Court, on the one hand, and the conservative modern Court, on the other.

This chapter surveys the Supreme Court’s evolving role and interpretive approaches during five historical eras leading up to the present one. During the chief justiceship of John Marshall (1801–35), the Court rendered important decisions and issued expansive interpretations of judicial power and national legislative authority that today are viewed as cornerstones of the constitutional order. The succeeding era under Chief Justice Roger Taney (1836–64) brought the fiasco of Dred Scott v. Sandford (1857), which held that Congress had no power to regulate slavery in the territories, and the erosion of judicial authority during the Civil War. During the Lochner era (1865–1937), the Court recoiled from enforcing Reconstruction Amendments that had enshrined rights of racial minorities while simultaneously taking aggressive steps to shield businesses from regulatory legislation. The ensuing era (1937–69) began with the collapse of judicial resistance to economic regulatory legislation during the New Deal and continued as the Court under the leadership of Earl Warren expanded the rights of racial and other minorities. During the post-Warren period (1969–2016), the Court, like the country, turned to the right. Nonetheless, many liberal decisions endured, and the Court upheld abortion rights, permitted affirmative action, and established a right to gay marriage.

The Supreme Court has implemented a set of revolutionary changes in constitutional doctrine since the 1990s. It has developed a body of constitutional law that is rooted in a deep-seated mistrust of the People’s elected representatives. That body of law is one of several factors contributing to the problem of democratic decay in the United States. To reverse the process of democratic decay, the Court will need to repudiate much of the constitutional doctrine developed since World War II. In short, we need a Copernican revolution in constitutional law to revitalize popular control of the government. For far too long, the Court has placed itself at the center of our constitutional universe. Other actors in the system revolve around the Court, like planets revolving around the sun. To restore popular sovereignty and reverse the process of democratic decay, the Court must place We the People at the center of our constitutional universe, with other actors (including the Court) revolving around us.