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Analysis

No, Courts Don’t Treat the Second Amendment as a ‘Second Class’ Right

In fact, Americans enjoy especially robust gun rights — in the courts as well as the legislatures.

Last Updated: November 18, 2021
Published: November 18, 2021
Gun rights protestors
George Frey/Getty

This article first appeared in the Wash­ing­ton Post.

In oral argu­ments this month for one of the Supreme Court term’s most anti­cip­ated cases, Justice Samuel A. Alito Jr. posed a hypo­thet­ical ques­tion to an attor­ney defend­ing a century-old New York law that forbids resid­ents to carry a hand­gun in public unless they can demon­strate a heightened need to do so. He asked whether the justices would “be recept­ive” to the attor­ney’s argu­ments defend­ing the restric­tion “if we were inter­pret­ing, let’s say, the First Amend­ment?”

Observ­ers who have followed Second Amend­ment law could guess imme­di­ately what Alito was doing: He was allud­ing to the belief in conser­vat­ive circles that the Second Amend­ment is widely treated as a “second-class” right, relat­ive to others that liber­als support. That perse­cu­tion narrat­ive is poised to trans­form the right to keep and bear arms.

Alito’s invoc­a­tion of the Second Amend­ment as a “second-class” right didn’t arrive out of the blue. Within the courts, the argu­ment origin­ated in Alito’s own opin­ion in McDon­ald v. City of Chicago (2010). There he wrote that Chicago, by arguing that the Second Amend­ment should apply only as a limit­a­tion on federal, not state or local govern­ments, was asking the Court to treat the right to keep and bear arms “as a second-class right, subject to an entirely differ­ent body of rules than the other Bill of Rights guar­an­tees.” (The court found against Chicago, and Alito wrote the opin­ion.) Alito returned to this theme in a Feder­al­ist Soci­ety address last year, when he inveighed against what he viewed as the mistreat­ment of cultural conser­vat­ives by vari­ous insti­tu­tions and, in the process, asser­ted that the Second Amend­ment is “the ulti­mate second-tier consti­tu­tional right in the minds of some.” By our count, more than a dozen briefs in the current gun-rights case, New York State Rifle and Pistol Asso­ci­ation v. Bruen, invoke some version of the “second-class right” argu­ment.

The alleg­a­tions of wide­spread mistreat­ment are gener­ally backed by no more than a case cita­tion or two, perhaps because no strong empir­ical support exists for a broad trend of second-class treat­ment. More than 1,400 Second Amend­ment chal­lenges have been decided since District of Columbia v. Heller, the land­mark 2008 case in which the Supreme Court estab­lished an indi­vidual right to keep a hand­gun at home (but also emphas­ized that the right is subject to vari­ous forms of regu­la­tion). Our empir­ical analysis of the first eight years of post-Heller Second Amend­ment cases found that civil plaintiffs repres­en­ted by an attor­ney — that is, people chal­len­ging gun restric­tions — have a success rate of 40 percent in federal appel­late courts. That figure hardly suggests that judges are turn­ing their backs on pro-gun-rights argu­ments; it is in line with, or higher than, success rates in other consti­tu­tional contexts. (One researcher finds that landown­ers win in fewer than 10 percent of “takings” cases based on regu­lat­ory activ­ity, for instance; another finds that plaintiffs prevail in 48 percent of Fourth Amend­ment claims raised in the civil context.) And many unsuc­cess­ful Second Amend­ment claims are object­ively weak: About a quarter of the ones we examined chal­lenged felon-in-posses­sion laws, which were specific­ally blessed by Justice Antonin Scalia in his major­ity opin­ion in Heller.

Amer­ic­ans enjoy espe­cially robust gun rights. That’s true in the courts as well as the legis­latures. But the second-class claim nonethe­less taps into a famil­iar story that gun rights advoc­ates have told, one that involves overzeal­ous gun grab­bers seek­ing to stamp out gun culture and gun rights.

If a major­ity of the justices come to accept the second-class fram­ing, despite its lack of support, they could use it to further expand the right to keep and bear arms, and thus further limit the abil­ity of govern­ments to regu­late fire­arms — hardly the first time that an appar­ent rhet­or­ical flour­ish ended up shap­ing consti­tu­tional law. (The “market­place of ideas” meta­phor, for example, has a power­ful grip on First Amend­ment law and theory, even though, in the real world, false ideas regu­larly prevail over true ones.)

Given the prom­in­ence and poten­tial influ­ence of second-class rhet­oric in the Second Amend­ment context, we set out, in a forth­com­ing law review article, to chart its devel­op­ment and influ­ence. We traced how other judges picked up on, and some­times embel­lished, Alito’s asser­tion in the 2010 case involving Chicago. Criti­ciz­ing his colleagues’ reluct­ance to hear a Second Amend­ment chal­lenge in 2018, for example, Justice Clar­ence Thomas char­ac­ter­ized the amend­ment as a “consti­tu­tional orphan.” That same year, a judge on the Fifth Circuit Court of Appeals called the Second Amend­ment the “Rodney Danger­field of the Bill of Rights” (quot­ing a legal scholar who was actu­ally describ­ing the right’s treat­ment before Heller was decided — when the claim might have been more plaus­ible). Other judges, we found, describe it as “disfavored,” “watered-down,” “diluted,” “under­en­forced” or “aban­doned.”

Two law profess­ors, John Yoo and James C. Phil­lips, took the rhet­oric up a notch in a National Review article, claim­ing that the Second Amend­ment has been “banished to the back of our consti­tu­tional bus.” The edit­or­ial page of the Wall Street Journal, simil­arly invok­ing the civil rights era, accused legis­latures of enga­ging in “massive gun resist­ance.” The sugges­tion was that there has been a wide­spread and flag­rant refusal to enforce gun rights analog­ous to oppos­i­tion to deseg­reg­a­tion after Brown v. Board of Educa­tion.

Claims like these have an unmis­tak­able partisan appeal — and we found evid­ence of such partis­an­ship within the federal courts. Ninety-five percent of the authors of judi­cial opin­ions invok­ing the “second-class” theme (20 of 21), over the period June 26, 2008 (when Heller was decided), to May 7, 2019, were appoin­ted by Repub­lican pres­id­ents. So were 94 percent (49 of 52) of the judges who signed on to such opin­ions.

Most of the comment­ary on Bruen has focused on ques­tions of history, doctrine and social science. There are thought­ful, nonpar­tisan argu­ments on both sides. But the outcome of the case might end up being driven not by care­ful analysis but by resent­ment about the supposed disrespect of a right cham­pioned by conser­vat­ives. At a time when many observ­ers have concluded that the court has become an overly ideo­lo­gical insti­tu­tion, that would be a deeply unfor­tu­nate devel­op­ment.

Joseph Blocher is the Lanty L. Smith ’67 professor of law and co-director of the Center for Fire­arms Law at Duke Law School.

Eric Ruben is assist­ant professor of law at South­ern Meth­od­ist University’s Dedman School of Law and a fellow at the Bren­nan Center for Justice at NYU School of Law.