Is the Second Amendment Really in the Bill of Rights?

by David French

After reading Kevin’s excellent piece about Meredith Graves, I’m reminded yet again that many liberal enclaves have not yet absorbed the lessons of McDonald v. Chicago. In McDonald (as most of you recall) the Supreme Court declared the right to keep and bear arms to be “fundamental” to the nation’s system of “ordered liberty” and applied its protections to state and local law through the doctrine of “incorporation.” In other words, the Supreme Court treated the Second Amendment the way it treats, for example, the First Amendment — as limiting government power at all levels.

In other contexts, incorporation has led to a remarkable degree of legal conformity. My First Amendment rights, for example, don’t vary much from New York to Los Angeles. While there are still individual permitting schemes and other relevant local ordinances, they stand and fall based not just on local conditions and facts but also (and primarily) on fealty to overarching federal constitutional principles.

Assuming the McDonald majority holds (yet another reason why judicial appointments matter), we’re at the beginning of a decades-long leveling process, and it’s entirely possible that five years from now Meredith Graves will face a very different — and more just — legal landscape, one that truly recognizes the Second Amendment’s place within the Bill of Rights. It’s possible that Ms. Graves’s own case could be the legal catalyst for change in New York. Yet we know the Left will fight every step of the way, seeking not only to imprison Meredith Graves (and others like her) but to convince judges and the public that the Second Amendment — for all practical purposes — does not even exist.

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