Stop Treating the Second Amendment as a Second-Class Right | Opinion

Stop Treating the Second Amendment as a Second-Class Right | Opinion

Not all constitutional rights are treated quite the same. For decades, federal courts have largely ignored the Second Amendment right to keep and bear arms—a protection explicitly guaranteed by the Constitution’s text. The judiciary sides time and again with government officials who impose burdensome and often punitive restrictions on gun owners. This treatment stands in stark contrast with the way courts have traditionally handled other rights. Take, for example, the right to an abortion. While the Constitution expressly codifies the right to keep and bear arms, abortion lacks any clear textual foundation. And yet the right to an abortion has gained a seemingly exalted status in Supreme Court precedent. This term, monumental cases will present the Court with an opportunity to reconsider both issues and, at long last, to reground its jurisprudence in the text of the Constitution. When they ratified the Second Amendment in 1791, the states were embracing a right with which they were already well familiar. As the 1689 English Bill of Rights declared, “the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.” (Note that those subjects whom Parliament hoped to keep defenseless—Roman Catholics—were denied the right). Both the Framers and their English forebears recognized that the ability to arm oneself was often necessary for individuals meaningfully to defend themselves and their families. And that need, of course, could arise either at home or in public. As a result, throughout most of the nation’s history, […]

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