I have never written on the Second Amendment, because it is just not a focus of the organization I lead. Conversely, Second Amendment organizations never talk about social issues, like same-sex “marriage.” But for those who love guns and also love the Tenth Amendment, the Obergefell same-sex “marriage” case may have just put you on the horns of a dilemma.
Will the Second Amendment Be Trumped or Limited?
The Obergefell case should concern gun rights advocates because of the evolutionary view of constitutional law it embraces. It created a new right not found in the text of the Constitution—same-sex “marriage” grounded in an implied constitutional right to sexual autonomy—and has set it on an inevitable collision course with an express constitutional right to the free exercise of religion. The current constitutional trajectory is toward religious liberty being limited by sexual liberty.
By analogy, Second Amendment supporters have to wonder what new right might liberals come up with, not in the text of the Constitution, and pit against the express constitutional right to bear arms? Or better yet, if the words “liberty” and “due process” in the Fourteenth Amendment can be morphed into the right to marry someone of the same sex, what meaning might the court infuse into the “right to keep and bear arms”?
For example, some, including President Obama, are now morphing the words “free exercise of religion” into the expression “freedom to worship.” And courts are increasingly saying that religion is what you do in the privacy of your home and something you give up when you enter into the stream of commerce as a member of the state.
So what is to keep the Court from someday saying that the “right to keep and bear arms” was only intended to protect one’s “liberty” in the context of home invasions and that people have a right not to have their life or liberty threatened by people who carry guns in public?
If that makes you laugh, I can direct you to some preachers who probably laughed eleven years ago when somebody suggested that the Massachusetts same-sex “marriage” case might lead to a restriction of the First Amendment’s free exercise clause.
With the stroke of the Supreme Court’s pen, it could be “bang!” the NRA is dead.
Will the Second Amendment Trump the Tenth?
As with same-sex “marriage,” the U.S. Supreme Court is driving the constitutional evolution by which the Second Amendment is beginning to trump the Tenth Amendment. In 2010, in McDonald v. City of Chicago, the Supreme Court held that the Second Amendment right applied to invalidate laws enacted the states (or their political subdivisions, cities). Until then, the limitation on restricting gun rights was confined to laws enacted by the federal government.
For many, this latter statement will seem shocking, but that was true with respect to all the rights enumerated in the Bill of Rights. None of those rights were protected from laws enacted by states until after adoption of the Fourteenth Amendment. For example, since 1870, Section 26 of Article One of the Tennessee Constitution has read:
Section 26. That the citizens of this state have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime. (emphasis supplied)
Arguably, in 2010 the Supreme Court trumped that provision of our state constitution, though I don’t recall legislators or citizens being as mad about that violation of state’s rights as they have been about marriage.1
Anyway, some Second Amendment supporters may now take the next step by trying to apply the following logic from Obergefell to the issue of gun carry permits: If an un-enumerated right to same-sex “marriage” can require one state to accept another state’s marriage license, cannot a restrictive gun rights state be required to accept another state’s carry permits, at least for limited periods of time such as trips and vacations?
I realize that other constitutional arguments can be made to reach this same result, but Obergefell certainly opens the door to the argument that a constitutional right trumps a state’s rights relative to the same subject. And if the NRA can walk through that door, and with the Supreme Court’s power to make up new rights, then expect others to try the same door until the Tenth Amendment has more holes in it than a target at the local shooting range.
1 To those who will misread that comment as anti-Second Amendment, let me be clear: to say that a state can regulate the wearing of firearms as a right under the original Tenth Amendment, which Tennessee’s voters chose to do in their constitution, is not the same as saying the state should actually exercise that power in any particular way. If conservatives were consistent and didn’t like that kind of provision in a state constitution, then they could have offered an amendment to change the state constitution rather than have the Supreme Court do the work for them. Ironically, years ago, when, as a state Senator having taken an oath to uphold the state constitution, I mentioned Article 26 in a gun rights survey, I got downgraded as a candidate.
— David Fowler, President of FACT