Is the 2nd Amendment a 2nd Class Right?

The Second Amendment guarantees the right to keep and bear arms, but are all rights created equal? Is the Second Amendment unfairly cast as a second-class right?

This provocative claim is far from new – gun rights advocates, scholars, and even judges have argued the point for years. The 2nd class right claim has even found its way into landmark Supreme Court cases, like NYSRPA v. Bruen and McDonald v. City of Chicago. At the heart of these arguments lies a nagging worry: the Second Amendment might not be granted the same level of protection as other constitutional rights. To cut through the noise, we turned to Prof. Joseph Blocher (Duke Law School) for expert insight.

The crux of the second-class right claim may very well stem from the historical lack of judicial review concerning gun laws in the U.S. Prof. Blocher reveals that for over two centuries, not a single federal gun law was struck down by any court across the country on 2nd Amendment grounds. This surprising fact has helped to fuel the perception that the Second Amendment is (or at least was) a second-class right.

After the groundbreaking District of Columbia v. Heller case in 2008, which established the individual right to keep guns, courts have started to scrutinize gun laws with newfound rigor. Yet, even with this increased scrutiny, few regulations have been struck down on Second Amendment constitutional grounds. Some argue this indicates courts still aren't enforcing the Second Amendment. On the other hand, perhaps the low success rate of challenges simply reflects a lack of gun laws to challenge. Prof Blocher explores the numbers. 

The Bill of Rights enshrines some of the most cherished constitutional freedoms for Americans, but the order of the list doesn't imply ranking. The Second Amendment may clash with other rights, but there's no clear hierarchy. The First Amendment, for instance, doesn't always take precedence over the Second. Blocher emphasizes that the crucial question isn't about ranking but rather whether the Second Amendment is being rigorously applied according to its intended meaning.

Joseph Blocher is a leading Second Amendment scholar and a professor at Duke Law School. He serves as co-director of the Duke Center for Firearms Law. 

Additional Resources

This video was created in collaboration with the Duke Center for Firearms Law, dedicated to the development of firearms law as a scholarly field, through the development and support of reliable, original, and insightful scholarship, research, and programming on firearms law. 

Cases and Law Discussed

  • Second Amendment to the United States Constitution –  "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
  • District of Columbia v. Heller – Established the personal 2nd Amendment right and struck down a law banning the keeping of guns in the home. (2008)
  • NYSRPA v. Bruen – Supreme Court case which expanded Second Amendment rights outside of the home and established a new Second Amendment test. (2022)
  • McDonald v. Chicago – Supreme Court case that established (through the 14th Amendment) that the 2nd Amendment right to keep and bear arms is applicable to states. (2010)

Related Resources 

  • Gun Laws after Bruen – a 1hr titans of law interview with Prof. Blocher on the Supreme Court's decision in NYSFPA v. Bruen and its impact. 
  • Text, History and Tradition Test – Established by the 2022 landmark decision, NYSRPA v. Bruen, the text, history, and tradition test now governs laws restricting the right to keep and bear arms – invalidating any gun laws that fail to meet its standard.
  • Sensitive Places under the Second Amendment – restrictions on firearms are permited in areas deemed "sensitive" under Second Amendment doctrine.