SCOTUS gun ruling protects individual right

During the final weeks of the Supreme Court of the United States' 2022 term, it issued some truly historic rulings.  In doing so, SCOTUS went a long way to re-establishing itself as a co-equal branch of government designed to uphold individual rights guaranteed by the Constitution against illegal government restrictions, while simultaneously defending separation of powers among the three branches of the federal government and between the federal government and the states.

Anyone who has a problem with SCOTUS's recent rulings, for instance President Joe Biden, simply has a problem with the fact that the United States is neither a dictatorship nor a direct democracy, but rather a constitutional republic.

The cases decided by the Court ranged from the president's power to set immigration policy to state and local government discrimination against religious liberty to limits on gun rights to the federally guaranteed right to an abortion, to limits on the administrative state's powers, among numerous other issues.

The Second Amendment to the U.S. Constitution guarantees the right of the people to keep and bear arms.  The right was demanded by the framers and enshrined in the Constitution so that "we the people" could defend ourselves, our families, and our property against crime — which, at the time, included raids from Native American tribes with whom conflicts were common — and, as part of a state militia, against enemies both foreign and domestic.

The Constitution, as originally designed, protected individuals' rights against incursion by only the federal government.

States were allowed to have established churches, and some did.  Limits on states' abilities to take private property or inflict cruel and unusual punishment were nonexistent, unless protected in state constitutions.  And yes, states and localities regularly imposed limits on the right to keep and bear arms within their borders.

It was not until after the Fourteenth Amendment to the Constitution was adopted, and the incorporation doctrine applied, that individual rights also began to receive federal protection against violations by state and local governments.  Citing the Fourteenth Amendment, SCOTUS determined that the Constitution established procedural protections for persons accused of crimes, limited methods of execution and punishment, determined that various states' "Jim Crow era" voting and property laws violated constitutionally guaranteed rights and that "separate but equal," was unequal and unconstitutional.  Over time, the protections afforded "the people" under the First, Fourth, Fifth, and other amendments to the Constitution were routinely applied against state and local governments.

The Second Amendment was a laggard in this.  But, beginning with United States v. Emerson and, more importantly, District of Columbia v. Heller, the court began to incorporate the Second Amendment's guarantee of a right to keep and bear arms against the states.  Because SCOTUS did not provide clear direction concerning what state laws necessarily violated peoples' gun rights, lower courts continued to treat the Second Amendment as the unwanted stepchild of the Constitution, regularly upholding state schemes that limited individuals' ability to exercise their right to own and carry guns.  Finally, SCOTUS had enough of the disassembling.  In a majority ruling written by Justice Clarence Thomas in the case of New York State Rifle & Pistol Association v. Bruen, the court established the Second Amendment as a co-equal individual right with all the others.

"The constitutional right to bear arms in public for self-defense is not 'a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,'" Thomas wrote.  "The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need."

"The Second Amendment right to carry arms in public for self-defense is no different," the Court ruled.

Subsequently, SCOTUS remanded a number of other gun rights cases arising from various other states' firearm restrictions back to lower courts for reconsideration in the light of the ruling.  In response, Maryland has already loosened its restriction on concealed carry.  By contrast, New Jersey is doubling down on firearm restrictions, seemingly intent on a confrontation with SCOTUS.

Regardless of one's feelings about gun ownership and the decision to carry firearms in public, it is a fundamental right protected by the Constitution.  If people and some state lawmakers don't like that fact, rather than ignoring the rule of law, they should try and change it through the constitutional amendment process.

I think such efforts would be doomed to fail and would be bad as a matter of policy.  Can anyone look at the state of the world and honestly claim that the threats of crime or tyranny have declined since the Second Amendment was adopted?

H. Sterling Burnett, Ph.D. ( is a senior fellow with The Heartland Institute, a nonpartisan, nonprofit research center headquartered in Arlington Heights, Illinois.

Image: Alien Gear Holster.

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