By Damon W. Root
Brannon Dennings, professor of law at Samford University, and Glenn Reynolds, professor of law at the University of Tennessee (and proprietor of Instapundit.com) have just posted a very interesting new article to the Social Science Research Network on gun rights in the wake of the Supreme Court’s landmark decision in McDonald v. Chicago. Here’s a brief excerpt:
With its incorporation against the states post-McDonald, the Second Amendment now leaves the netherworld it inhabited previously, and enters the realm of what might be considered “normal constitutional law.” We now have a constitutional right recognized in no uncertain terms by the Supreme Court, and incorporated against the states. Litigants may now invoke that right without having to overcome questions of whether the right exists, whether it can be invoked by individuals, or whether it applies only against the states. For this reason, the Second Amendment, long treated like an embarrassing stepchild, joins other provisions of the Bill of Rights, not as some odd exception, but as normal constitutional law.
The question remains whether the federal courts will protect Second Amendment rights vigorously, as they generally do with regard to First Amendment free speech rights, or lackadaisically, as they often seem to do with regard to Fourth Amendment search and seizure rights. At least these questions will now be decided in court and not relegated to the arenas of scholarship and politics alone. Courts will now be forced to address, rather than evade, Second Amendment questions.