The Material Oddity of the Second Amendment

It seems to me that the Second Amendment to the US Constitution is unique in terms of having a very material aspect to it lacking in the other rights guaranteed to the people.  It gives you the right (as currently defined by the Supreme Court) to bear arms — in other words, again as SCOTUS has defined it, to own firearms.

There are restrictions that have, more or less and so far, withstood judicial scrutiny as not overly infringing on those rights.  There are restrictions on certain classes of weapons. There are restrictions on where I can carry weapons (varying by state and municipality). There are restrictions on where I can buy them, what background checks they need to run, etc. (again, sometimes varying by state, and often with odd loopholes, like internet purchases). There are restrictions on concealed carrying of weapons (again, varying by state and municipality).  There are restrictions on who can own guns — the mentally ill and former felons face various restrictions (again, with variations).

But, fundamentally, the Second Amendment provides all citizens in good standing a right to own a thing.  That makes it different from all those other rights, which are about intangibles, the right to do something, or protection from the government regarding religion or the justice system, or protection from certain impositions such as slavery.

There is no Constitutional Right to own anything … except for firearms.

And that has complicated dealing with guns and gun violence in this country in a variety of ways.

Set aside the question of why that right was considered sufficiently important to codify in the Constitution — as protection for hunters, or as a way for states to protect themselves from invaders, or for individuals to protect themselves (from criminals or tyrants), any restrictions or regulations on guns must face that uphill battle against that fundamental right.

Take the "firearm insurance" thing I mentioned earlier.  All practical considerations (is what it seeks to do good, will it actually accomplish its ends), if the effect of such a law is to unduly burden people from possessing a firearm, then it will get tossed out. That's the double-edged sword of "make it to expensive for folks to own guns": you end up letting just the rich own them (and, really, is that what you want?) and you open yourself up to a court challenge.

Consider a parallel case of a right.  It is possible to harm people through your free speech, by defaming them. We have laws about slander and libel to reflect that. But what if someone said, "Perhaps we should require people who are publishing things — be they journalists, or boggers, or tweeters, or whatever — to get defamation insurance, to cover them in case they do harm to someone  and get sued."

I think most folks would consider that outrageous and unworkable.  And, yes, there is a difference between a school massacre and a someone's reputation being ruined.  But the general principle applies.

That said, no right is absolute. As noted, we do allow some restrictions on  speech (both those civil laws as well as limited cases of criminal law regarding national security, as well as direct incitement to violence, criminal conspiracy, etc.). Similarly, we have some restrictions on firearm ownership. But they are required to be of a limited nature, since the fundamental right to bear arms (as interpreted) remains.

No particular conclusions here. It just occurred to me that, in some ways, the Second Amendment is unique in the sort of thing it does, very different from all the other amendments.

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