Law & the Courts

The Corner

No, the Second Amendment Is Not Given Special Treatment

In the course of yet another dull, straw-clutching broadside against the right to keep and bear arms, the Atlantic’s David Frum repeats a commonly asserted myth:

That kind of supposedly defensive, actually aggressive, violence has become an even graver risk after today, in an American society that regards personal arsenals to be at least as much of a human right as the rights of free speech and peaceful assembly—and in actual practice, often a more fundamental right.

This is a popular talking point based upon a popular premise: That the Second Amendment is accorded a latitude that is no other. The trouble for Frum is that it’s nonsense. As it should be, the First Amendment is extremely broadly interpreted, to the point at which even sedition is legal unless it is accompanied by incitement to imminent violence. In recent years, the courts have prohibited the government from banning “crush” videos in which kittens are killed with stilettos; they have protected the rights of bigots to protest military funerals; and they have gutted the country’s campaign-finance laws on the (correct) grounds that they can’t be enforced without undermining core political expression. Before that, in Brandenburg v. Ohio, they had outlined speech protections that have no parallel in the history of the world.

Has the same thing happened for the Second, as Frum suggests? Not on your life. Indeed, Second Amendment advocates such as myself could only dream of such a trend. As is clear from his cringeworthy displays on Twitter, Frum does not have even a basic grasp of America’s gun laws, for if he did he’d understand just how ridiculous is his claim. A Second Amendment jurisprudence that echoed or exceeded the First would yield the voiding of almost every one of the thousands upon thousands of gun laws that obtain; it would put an end to all licensing, requests for “cause,” and background checks; it would nix the prior restraint rules that are imposed in many states; it would open up the right to felons, to children, and to those in institutions; and, crucially, it would mean that the courts had to use strict scrutiny when evaluating claims, rather than the thumb-on-the-scales intermediate level that they tend to opt for in cases to do with guns. In practice, the First Amendment is as close to an “unalienable right” as has ever existed; one can do very little to lose one’s shot at enjoying it. The Second, by contrast, is heavily locked down. One can argue that that’s good — or that, in practice, it’s inevitable — and one can complain that America is far more liberal on the matter of arms than every other free country. But one cannot pretend that, culturally or legally, the Second Amendment is accorded special treatment.

Unless, that is, one doesn’t care what’s true and what’s not.

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