Heller is the product of a mature current of constitutional thought, spurred by private groups but also by committed academics, that had clearly become prominent in nationwide politics and culture and that, by 2008, had established itself as thoroughly mainstream. In sharp contrast, Griswold was the result of an early effort by an incipient movement for reproductive rights and sex equality that had yet to become highly visible on the nation’s cultural viewscreen. In this sense, Heller has far more in common with Brown v. Board of Education than with Griswold—in the particular sense that Brown, like Heller, was the culmination of a long process of advocacy, in a self-conscious effort to entrench a certain understanding of the Constitution in the interest of social reform. In short, Heller and Griswold have distinctive sociologies. While the two are both responsive to public convictions, the cultural backdrop for the two decisions was radically different.
That’s Cass Sunstein, appointee to the Obama Administration. Â He may be an animal rights whack job, but he may very well be the most pro-Second Amendment person nominated to serve in the administration (which isn’t saying much). Â Griswold is the case which created a right to privacy, specifically in matters of contraception. Â That case was expanded on in Roe and Lawrence.
That Heller is a closer cultural decedent of Brown is a very high compliment. Â That’s an accomplishment we can all take some measure of credit for.