Among those who remain frustrated by Americans’ continuing distaste for harsh, European-style gun control, a favorite point of complaint is that the Second Amendment is more vigorously and consistently enforced than are all the others and that this supposed disparity isn’t fair. Writing recently in The Atlantic, David Frum lamented that the right to keep and bear arms was on a jurisprudential par with “free speech and peaceful assembly,” and then proposed that “in actual practice” it is “often a more fundamental right.” This claim is routinely echoed across the internet, with terms such as “extreme,” “absolute,” and “uncompromising” being thrown around with particular abandon. A popular meme on social media captures the idea well. “I wish,” it reads, “that abortion were regulated in the same way as are firearms”—the implication, naturally, being that firearms are not regulated at all. Where, critics ask, are the limits?
This talking point is an extraordinarily irritating one, for, far from being set apart for special treatment, the Second Amendment is, in fact, the least enforced provision within the entire Bill of Rights—and, arguably, within the entire Constitution. During the last decade, Congress has generally declined to impose new federal gun regulations, but, at the same time, it has so far accomplished little to provide relief for the millions of Americans who live in states with vehemently anti-gun legislatures. Likewise, the Supreme Court seems to have run out of steam immediately after the 2010 McDonald v. Chicago decision. 2008’s D.C. vs. Heller was a crucial—and legally correct—step toward the restoration of the Second Amendment; McDonald, which applied Heller to the states, was more important still. And yet, because in practice the two rulings nixed only the most extreme provisions within the panoply of illegal gun control rules, they left a number of important questions unanswered. Almost a decade later, there remains a veritable raft of related law in dire need of fleshing out. Alas, the court has steadfastly refused to do that work, permitting the lower courts to run riot.
Frustrated by his colleagues’ peculiar reluctance to engage with cases involving guns, Justice Clarence Thomas has taken to issuing rare dissents from the frequent denials of certiorari, and to chastising his branch for its pernicious selectivity. “Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense,” Thomas has written, “lower courts, including the ones here, have failed to protect it.” This, he proposed, is unacceptable, for “Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document.” Indeed.
