The Second Amendment as a Fundamental Right

Abstract

The Second Amendment has been suffering from an inferiority complex. Litigants, scholars, and judges have complained that the right to keep and bear arms is not being afforded the respect and dignity befitting a fundamental constitutional right. They have asserted that on its own terms and relative to rights in the same general class, the Second Amendment is being disrespected, under-enforced, and even orphaned. Reviewing the available evidence, this Article, which is part of a symposium concerning the Second Amendment in the first decade after District of Columbia v. Heller (2008), generally rejects second-class claims as either false or significantly overstated. Many of the claims are based on false premises, including the notion that the Supreme Court and lower courts immediately and aggressively expand the scope of fundamental rights once they are recognized, that all fundamental rights are created and enforced equally, that the absence of strict scrutiny is demonstrative of lower-class status, and that low success rates demonstrate under-enforcement. The Second Amendment exhibits all of the hallmarks of a fundamental constitutional right: It is a non-economic, individual dignity right that is considered implicit in the concept of ordered liberty. The available evidence does not show that lower court decisions are generally the product of judicial hostility, resistance, or ideology. The Supreme Court’s decade-long silence, which is about to be broken, did not signal abandonment of the Second Amendment. It, too, is consistent with the treatment of other fundamental rights. Whatever the Second Amendment becomes, its path should not be charted according to an inaccurate assessment of its current status.

Keywords: firearms, Second Amendment, rights, free speech, fundamental