Drawing New Conclusions: Is the Second Amendment a Fundamental Right?

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February 6, 2017
Adam Joseph Neuman

The notion of what constitutes a fundamental right accompanies constitutional analysis on nearly every level. Put simply, the Second Amendment must be scrutinized to assess what precisely it comes to protect. A careful look at both clauses and the cases that follow shed light on the amendment's purpose and function. This piece is the second in a series of three and followsDrawing New Conclusions: Clarifying Gun Laws for the New Supreme Court.”

Until District of Columbia v. Heller, the prefatory clause was fundamental to understanding the Second Amendment. In United States v. Cruikshank, the Court explicitly stated that the right to bear arms is not granted by the Constitution. In U.S. v Miller, the Court explained, “the signification attributed to the term Militia appears from the debates in the convention, the history and legislation of Colonies and States.” Miller did not guarantee a citizen’s right to possess a sawed off shotgun because it was not “ordinary military equipment.” Miller further noted that “no one person” has the absolute right to bear arms. With that precedent, where does Scalia get his idea to reinterpret the Second Amendment? Perhaps Scalia was influenced by Justice Rehnquist’s decision in U.S. v. Lopez, which held that the federal law forbidding individuals from knowingly carrying a gun in a school zone was unconstitutional because the commerce clause cannot regulate gun laws that do not have a substantial effect on interstate commerce. This decision was shocking as, for the first time in sixty years, the Court invalidated a federal statute under the commerce clause, seemingly to simply uphold a gun law.

Fundamental Rights, Scrutiny, and the Second Amendment

Zablocki v. Redhail stresses that tradition, natural law, and historically protected rights are to be considered when determining what constitutes a fundamental right. Is there a history or tradition of protecting firearms? Is it natural to possess a gun? Although the Second Amendment is historically significant, an individual right to bear arms is neither rooted in history nor is it a natural law. The drafting history of the Bill of Rights demonstrates an intentional focus on the militia and originally granted the States their own right to arm a militia against a tyrannical federal government. Federalists assured Anti-Federalists that states could propose this provision, and Madison made a deliberate choice to adopt language that included “militia” juxtaposed with the right to bear arms. The Second Amendment, therefore, was meant to protect states from federal tyranny, not to protect the “history and tradition” of bearing arms.

Scalia’s majority in Heller concedes Breyer’s criticism that a level of scrutiny was not established for Second Amendment analysis and proposes that future cases will help “expound” on the level of scrutiny. Justice Alito took it upon himself to answer this scrutiny question in the majority opinion in McDonald v. Chicago, which holds that the Due Process Clause of the Fourteenth Amendment limits Chicago from banning the possession of handguns by private citizens. Alito explains that the right to keep and bear arms is among the nation’s fundamental rights. If the right to bear arms is a fundamental right, then strict scrutiny is required. Once again, this ignores the understanding that the rights that are protected by the Due Process Clause, as noted in Snyder v. Massachusetts, must be “rights that are so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Furthermore, the Due Process Clause protects rights that are “the very essence of a scheme of ordered liberty…a fair and enlightened system of justice” (Palko v. Connecticut). These interpretations narrow the scope of the criteria for fundamental right status. Fundamental rights such as the rights to vote, marriage, privacy, abortion, and to teach your children come to mind after reading the above-mentioned quotations. Those rights deal with protecting our liberties, privacy, and the very fabric of our identity. Does the right to bear arms resemble the items on that list? Bearing arms is not a fundamental right, and the level of scrutiny should be that of rational basis review which calls for a government’s rational perspective and deferral to the legislature. It is more than rational to save lives by creating gun regulation laws. But even if an individual’s right to bear arms was somehow deemed a fundamental right, the law can, and on occasion must, change in light of new circumstances (Obergefelle v. Hodges).

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