top of page

Temporary Second Amendment Rights

Updated: Apr 10, 2023

The most recent Second Amendment decision of the Supreme Court affirms a constitutional right to carry handguns in public without meeting a government requirement of special need. The contours of that right will be determined by future cases. We don’t know now if the right to keep and bear arms will include all weapons, or which public places will be off limits to such gun possession.


It seems clear, however, from the decision overturning Roe v. Wade the very next day (Dobson v. Jacksonville Women’s Health Organization) that no precedent is immune from overrule if a future court finds it unreasonable. I’ll be surprised if the Second Amendment decision in New York State Rifle & Pistol Association v. Bruen lasts as long as Roe.


Justice Alito’s majority opinion in the Dobson (abortion) case notes that abortion rights aren’t guaranteed by the Constitution because abortion appears nowhere in the document. But he had signed on to Justice Thomas’ opinion in the Bruen (gun rights) case the previous day. That opinion justified a Second Amendment right to “keep and bear arms” for self-defense. But self-defense isn’t mentioned in the Constitution either. Nor are wire taps, interracial marriage, abortion, contraception, or car ownership. If the test for finding constitutional rights is their mention by name in the Constitution, people would have few constitutional rights.


So, what’s the test for constitutional rights? The Court applies the words in the Constitution to current circumstances. Now that we use telephones, we need the same kind of privacy protection in telephonic communication as the Fourth Amendment affords people in their written documents. Now that racism is constitutionally disfavored, a state law against interracial marriage or blacks owning cars will not be tolerated by the Court. The Court starts with the basic concept in the Constitution and applies it to more recent developments in law, culture, and technology.


One method of interpretation, called “original understanding,” identifies the meaning of the text with the meaning assigned to it by those who originally approved it. This is the method stressed by Justice Thomas in his majority opinion. But his views are highly speculative. He bases his interpretation of the Second Amendment on a seventeenth-century treaty between the English Parliament and its new king, which is nowhere referenced in the Constitution.


Also absent from the Constitution are any words granting individuals the right of self-defense. What’s more, words that would have clearly indicated an individual right to keep and bear arms were proposed and rejected. New Hampshire’s proposal was this: “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” Justice Thomas never explains why this wording wasn’t used if this was the original understanding of the Amendment.


It gets worse. What we do find in the Amendment are 13 words (there are only 27 words in all) that Thomas ignores completely: “A well-regulated militia being necessary for the security of a free state,…” This is an egregious omission in light of Chief Justice Marshall’s message in Marbury v. Madison (1803) which initiated the judicial review of statutes: “It cannot be presumed that any clause in the constitution is intended to be without effect.”


The result defies common sense. Imagine this declaration: “Helping the poor being the cornerstone of Christian charity, Mr. X is this year’s Christian of the year.” It would be absurd to suppose that he received the reward for regular church attendance, just as it's absurd for Justice Thomas to imagine that the right to keep and bear arms isn't limited to participation in a militia.


It seems that Thomas and the current Court majority are using the method they abhorred when used by liberals. Liberals assumed that rights which people ought to have must be somewhere in the Constitution, so they found rights which the text doesn’t support. In exactly the same way, six of the nine justices think that people should have the right to keep and bear arms for self-protection, so they ignore some words and pretend that others are implied when they aren’t actually stated.


In sum, the decision in Bruen is very weak, and is liable to be overturned if the pro-gun culture continues to include mass shootings at schools, churches, shopping malls and elsewhere. I hope this doesn’t happen, in which case I don’t care if we’re governed by a poorly justified interpretation of the Second Amendment.


I fear, however, that more children will die, schools will increasingly become armed camps, the level of education will diminish, and retail sales will slump because people are afraid to leave their homes. If this happens, a future generation of justices will suddenly discover that the Second Amendment concerns what we now call the National Guard, not individual gun owners.


But this doesn’t mean people will lack a right to bear arms. It means only that this right will be guaranteed by state law, not the federal Constitution.


You can respond by e-mail at wenz.peter@uis.edu.

3 Comments


fdavis101454
fdavis101454
Jul 03, 2022

Many of the writings by our founders specifically mentioned self-defense as a reason for the 2nd amendment. THis author is reaching

Like

hoodkeep
Jul 03, 2022

The right to self defense existed in England, as Blackstone observed in his 1768 work Commentaries on the Laws of England.

Like

fujinolimit
Jul 02, 2022

Self defense has always been a right, even prior to our country's existence. Ever heard of the right to persue "Life. Liberty and the Pursuit of Happiness"? Life is a right. So is defending it.

Like
bottom of page