By Dave Workman | Senior Editor
A recent essay in the National Review declared that it is time to stop treating the Second Amendment as a “second-class right.”
Authored by John Yoo and James C. Phillips, the essay noted that, “Unless the new conservative majority on the Court, solidified by Justice Brett Kavanaugh’s arrival, places the right to bear arms on a par with the rest of the Bill of Rights, the coming blue wave of gun-control proposals may swamp what the Framers considered a core constitutional right.”
It’s a hard look at perhaps the most important tenet of the Bill of Rights, because without it, the citizenry would have no means of resisting the erasure of all the protections of individual rights from a tyrannical government, according to some historians and gun rights activists.
The authors note that Democrats led by Nancy Pelosi (D-CA) are reportedly planning a flood of gun control proposals when they take control of the US House in January. They also leave no doubt that the Supreme Court has been not just reluctant but essentially gutless when it comes to the Second Amendment since nullifying the Chicago handgun ban in 2010 in a case brought by the Second Amendment Foundation called McDonald v. City of Chicago.
Yoo and Phillips argue, “Justice Clarence Thomas has lamented the Court’s unwillingness to stand up for its Second Amendment precedents in the face of resistance from some lower courts and state governments alike.” Thomas contends that “the Second Amendment is a disfavored right in this Court.”
“With Justice Kavanaugh now providing conservatives with a more secure majority, the Court can end its sidestepping of the Second Amendment,” Yoo and Phillips challenge. “To ensure the equal treatment of rights, the Court should apply the same tests it uses to protect free-speech rights to also protect the right to bear arms.
“For instance,” they continued, “as proposed by UCLA law Professor Eugene Volokh and endorsed in passing by the D.C. Circuit last year, the Court could invalidate restrictions that fail to leave open ample alternative channels to exercise rights. Such a test would allow for more-extensive background checks, but not bans on weapons for self-defense or high bars on the right to carry guns in public. And such a test would need to be consistent with the original understanding of the right at the time the Bill of Rights was adopted.”
That wasn’t all they had to say, either.
“Far too often for far too long,” the authors stated, “the Second Amendment has been a second-class right, banished to the back of our constitutional bus. Perhaps the day will come when the people will determine that the best way to curb gun violence is to cull the Second Amendment from the Constitution. Until then, the Court’s constitutional duty is to keep enforcing the right to bear arms just as it would any other constitutional right. Constitutional rights are legal equals. They should be treated as such.”
