Griswold's Hidden Second Amendment Thread

The two justices who defined mid-century constitutional law disagreed on nearly everything—and their fight over bedroom privacy still echoes in gun rights litigation today.

Catch up quick:

• Hugo Black (FDR appointee, Alabama populist) believed the Constitution means exactly what it says—no more, no less. If a right isn't written down, courts can't invent it.
• John Marshall Harlan II (Eisenhower appointee, Wall Street patrician) believed the Fourteenth Amendment's "liberty" protection encompasses a living tradition of rights—including ones not explicitly named.
• Their defining clash came in Griswold v. Connecticut (1965), where Connecticut's ban on contraceptive use reached the Supreme Court.

The intrigue: The labels were completely backwards. Harlan—the "conservative"—voted to strike down Connecticut's ban by invoking unenumerated rights. Black—the "progressive"—would have upheld the ban because the Constitution's text didn't explicitly protect contraception. The "conservative" expanded liberty. The "progressive" restricted it.

This isn't a trivia footnote. The same fault line that split Black and Harlan runs directly through modern Second Amendment jurisprudence.

The legal stakes: Bruen (2022) largely vindicated Black's textualist approach—if a historical tradition of regulation doesn't exist, the regulation fails. That's Black's logic applied to guns. But unenumerated rights doctrine (Harlan's lane) is what courts use when they decide whether emerging gun-related restrictions—red flag laws, carry permit schemes, magazine limits—burden a liberty interest the Founders didn't spell out word-for-word. Both frameworks are live wires in active litigation.

Zoom in: Harlan's dissent in Poe v. Ullman (1961), before Griswold even got there, is the clearest statement of his philosophy. He wrote that liberty under the due process clause isn't defined by a fixed list but by a "rational continuum" of tradition. Gun rights advocates have quoted similar reasoning when arguing that the right to keep and bear arms extends beyond the specific arms and contexts the Founders could have imagined in 1791.

Yes, but: Harlan's flexible tradition test is a double-edged tool. The same logic that protects unenumerated liberties can be used to uphold regulations that courts deem consistent with tradition—even when gun owners disagree. Bruen's explicit rejection of interest-balancing was partly a response to how badly that flexibility had been weaponized against the Second Amendment in lower courts for decades.

The bottom line: Black and Harlan fought over whose judicial philosophy best protected freedom. On guns, both frameworks are still in play—and understanding the tension between them tells you more about where the courts are headed than any single ruling.