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, both on its own terms and relative to rights in the same general class, the Second Amendment has been disrespected, under-enforced, and orphaned. They have argued that courts have treated the Second Amendment as “peripheral,” “fringe,” “anachronistic,” “second rate,” and “second-class.” The Second Amendment has been described as “the Rodney Dangerfield of the Bill of Rights” and even compared to Rosa Parks––i.e., a constitutional right that is forced to sit at “the back of our constitutional bus.”
This Article assesses the full range of “second-class” claims. I concede at the outset that comparisons across constitutional provisions, which most “second-class” claims invite or entail, are a complicated exercise. Among other things, they suggest some agreed-upon normative basis for determining whether or when particular rights are being disrespected or under-enforced. The baselines for making such claims are far from clear, and they involve contested normative judgments. However, judged according to all of the benchmarks at our disposal––conceptual, qualitative, quantitative, and doctrinal––“second-class” claims generally fall short.
Indeed, reviewing the available evidence, the Article 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. As recognized in District of Columbia v. Heller and interpreted in the lower courts, the Second Amendment exhibits all 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.”
Constructed in the image of the Free Speech Clause and analogized in those terms by many courts, the right to keep and bear arms exerts a powerful influence on constitutional discourse and political outcomes. To be sure, success rates for Second Amendment claims have been low, and lower courts have not generally interpreted Heller broadly. However, the available evidence does not show that either the results or the restraint are the product of judicial hostility, resistance, or political ideology. Indeed, many “second-class” claims appear to be disagreements with the merits of lower court interpretations of Heller or criticisms of the manner in which the Court itself defined and limited the right to keep and bear arms in the first place. While it is true that Heller has been “narrowed from below,” it is not true that this narrowing was either unauthorized by the Supreme Court or unreasonable. Indeed, as Richard Re has observed, “even if lower courts have not adhered to the best reading of Heller, they have interpreted the decision reasonably.”
As this Article is going to print, one of the standard “second-class” claims—that the Supreme Court has abandoned or “orphaned” the Second Amendment—has already been answered. While the Supreme Court has indeed been silent for a decade, thus leaving to lower courts the task of constructing Second Amendment doctrines, the Court has recently granted certiorari in a Second Amendment case. Even before the Court granted review, it was clear that the Court had not abandoned the Second Amendment for all time. Indeed, its decade-long silence was not exceptional. Other fundamental rights have experienced greater abandonment, and some even apparent exile. Thus, nothing about the Supreme Court’s post-Heller treatment of the Second Amendment suggested its “second-class” status.
In short, if there were a “Rodney Dangerfield Award” for fundamental constitutional rights, the Second Amendment would not currently be a very strong contender. In any event, our experience with fundamental rights shows that what courts have made of the Second Amendment in its first decade will not dictate what the right will become in subsequent decades. For firearms proponents, there are reasons to be optimistic in this regard. The Second Amendment’s inferiority complex has led to calls for recognition of a kind of super-right, one defined in absolute terms and buttressed by the most rigid standards. In light of the Second Amendment’s actual status, such exhortations represent a significant and ultimately unwise over-compensation. Whatever it becomes, by whatever dynamics will ultimately affect it, the Second Amendment’s path should be determined according to an accurate assessment of both its actual and relative status among fundamental constitutional rights. Its development should not be the product of over-compensation by the Supreme Court.
Part I provides a basic typology of the various “second-class” claims that have been advanced by litigants, scholars, and judges. “Second-class” arguments may be largely strategic or rhetorical—a means of goading, or perhaps guilting, the Supreme Court into reviewing and invalidating laws that burden Second Amendment rights. Part I instead treats the claims as substantive and normative. It identifies four types of “second-class” claims: conceptual, doctrinal, enforcement-related, and attitudinal. Critics complain that the Second Amendment has not been properly conceptualized or defined as a fundamental right, has been subjected to “second-class” doctrinal treatment, has been under-enforced by courts; and has been marginalized and disrespected owing to judicial bias. The remainder of the Article challenges these four general claims.
Part II argues that judged according to traditional indicia of constitutional rights in general, and fundamental rights in particular, the Second Amendment has been conceived and defined as a fundamental right. In Heller itself and post-Heller lower court decisions, the Second Amendment has been conceptualized as a non-absolute, but strongly constituted, constitutional right that can sometimes trump ordinary policy concerns. In these basic and minimal respects, at least, the Second Amendment bears the hallmarks of a fundamental constitutional right.
Part III focuses on “second-class” enforcement claims. It carefully reviews all of the available qualitative and quantitative literature on the subject of Second Amendment enforcement and concludes that the available evidence does not support several “second-class” enforcement claims. The evidence does not support claims of outright hostility and widespread resistance to Heller or to Second Amendment claims and claimants. It is the case that some lower court decisions express the sort of institutional concerns that sometimes indicate under-enforcement of constitutional norms. However, these statements are equally likely to be associated with principles of judicial restraint or judicial minimalism. Further, Heller’s own ambiguities may be responsible for lower court reticence to expand Second Amendment rights beyond the parameters the Court established. The data show that Second Amendment success rates are notably low. However, that fact alone does not demonstrate either under-enforcement of the right to keep and bear arms itself or a comparative disadvantage with regard to other constitutional rights. Evidence of ideological or attitudinal bias affecting Second Amendment claims is also weak. Finally, the evidence shows that in Second Amendment cases, courts are using standards and methodologies that are common to fundamental rights claims. The available data strongly suggest that the Second Amendment is being legalized and normalized as part of the Constitution’s existing system of fundamental rights. That process will continue as the Supreme Court and lower courts decide more Second Amendment cases.
Part IV more directly addresses claims that the Second Amendment has been treated as “second-class” relative to other fundamental constitutional rights. The claim that all fundamental rights are created and enforced on equal terms is demonstrably false. Moreover, within the existing rights hierarchy, both on its own terms and relative to other fundamental rights in its class, the Second Amendment is hardly a B-list right. To sharpen the comparative lens, the Part focuses in particular on a favorite comparator for Second Amendment “second-class” claimants—the Free Speech Clause. It first compares the two rights in their respective first decades of enforcement. It then assesses “second-class” claims against contemporary free speech and other fundamental rights standards. These comparisons offer important, but perhaps surprising, insights in terms of current arguments for “first-class” status on behalf of the Second Amendment. One insight is that the real source of “second-class” claimants’ angst is Heller itself, which appears to articulate a rather narrow conception of the right to keep and bear arms. Another is that treating every law or regulation that incidentally burdens Second Amendment rights as subject to heightened scrutiny would provide favored, not equal, treatment for the right to keep and bear arms. In short, it would produce an anomaly in the fundamental rights hierarchy: a kind of super-right. The Part concludes with a critical assessment of the claims that the Second Amendment has been orphaned, abandoned, or neglected, particularly relative to other fundamental rights. In this sense, as in others, “second-class” claims overreach.
The Article’s Conclusion briefly looks forward to the Second Amendment’s second decade and beyond. The substance and status of fundamental rights can change markedly over time. The scope and meaning of the Second Amendment has not been settled in its first post-recognition decade, any more than the Free Speech Clause was forever defined by the same era. The Supreme Court will soon clarify, and likely expand, the scope of the right to keep and bear arms. However, like other rights in its class, the Second Amendment is not likely to become the absolute right that some advocates desire. The right to keep and bear arms is likely to operate much as freedom of speech and other fundamental rights do—as a strong trump in some cases, but a right that is subject to certain limits in the name of other rights or public interests. Those limits and interests ought to be carefully considered against a backdrop that paints an accurate picture of the Second Amendment in its first decade.
46 Hastings Constitutional Law Quarterly 621-682 (2019)
Zick, Timothy, "The Second Amendment as a Fundamental Right" (2019). Faculty Publications. 1950.