The Constitution at a Crossroads

Where Will the Second Amendment Revolution Lead? | Chapter 7

The Supreme Court has moved the Second Amendment to a crossroads, and all Americans have an important interest in where the law in this area heads over the next twenty years.

Summary

Twenty-five years ago, it would have been outlandish to predict that the Supreme Court would recognize that the Second Amendment guarantees an individual right to bear arms. The Reagan Justice Department’s version of Crossroads did not mention the Second Amendment, and in 1991, no less of an authority than Warren E. Burger, the moderately conservative former Chief Justice of the United States, stated in an interview that the Second Amendment “has been the subject of one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups that I have ever seen in my lifetime.”

Burger’s view, that the Second Amendment’s right to bear arms could not be separated from militia service, was shared by other prominent conservatives, including failed Reagan Supreme Court nominee Robert Bork, who in 1989 argued that the Second Amendment works “to guarantee the right of states to form militias, not for individuals to bear arms.” But what Burger viewed to be a “fraud,” and what Bork viewed as a mistaken view of the Constitution’s original meaning, is now the law of the land, courtesy of the Supreme Court’s controversial and deeply divided 5-4 decision in District of Columbia v. Heller.

It is startling how much the ground has shifted. Twenty years ago, conservatives were debunking the idea that the Second Amendment protected an individual right. By February 2008, a month before Heller was argued, even progressive candidates such as Barack Obama were loudly and proudly stating the view that “there is an individual right to bear arms.” In Heller, the Supreme Court held for the first time that the more than two centuries old Second Amendment “conferred an individual In 2010, the Supreme Court recognized 5-4 in McDonald v. City of Chicago that this right was incorporated against the States through the Fourteenth Amendment.

The question now is where this Second Amendment revolution leads. While President Obama, the National Rifle Association, and a majority of the Supreme Court may all agree there is an individual right to bear arms, there remains much debate about the contours of that right.

So far, the Supreme Court has raised more questions than it has answered. It remains unclear exactly what the right protects or how the Court will balance the protection of Second Amendment rights against the government’s interest in crime prevention and public safety through the regulation of firearms. The answer to these questions will determine whether hundreds of gun control laws at the federal, state, and local levels are preserved or struck down by the Court.

But there is another intriguing dynamic at play in the Second Amendment arena. In the wake of Heller and McDonald, it is clear that the recognition of an individual right to bear arms has expanded the constituency of Americans who take constitutional rights seriously, with both liberals and libertarian conservatives clamoring for robust protection of different parts of the Bill of Rights and disagreeing only about what parts deserve what level of protection. As a result, the Second Amendment revolution has at least some potential to lead to a more robust protection of constitutional rights across the board, in a “rising tide lifts all boats” kind of way.

On the other hand, there is also the possibility that the Court may limit the application of Second Amendment rights in ways that could erode constitutional rights in other important areas or create special rules that apply only in the Second Amendment context.

All that can be said at this point is that the Supreme Court has moved the Second Amendment to a crossroads, and that all Americans have an important interest in where the law in this area heads over the next twenty years.

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