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Wednesday, January 16, 2019

The Bill of Rights Has First-Class and Coach Tickets

Several judges are complaining that the Second Amendment right recognized in Heller is being given inadequate respect. A notable opinion on this point that is getting a lot of attention is a dissent by Judge Bibas in the Third Circuit. Before proceeding, I should say that I know the judge. We practiced at the same law firm, he was a great scholar before joining the bench, and I supported his confirmation. Moreover, I have no particular opinion about the merits of his dissent or of the panel decision. Instead, I want to focus on one aspect of his analysis that I think is misguided.

In dissenting from the panel's decision to reject a Heller challenge to a New Jersey gun regulation, Judge Bibas twice says "The Second Amendment is an equal part of the Bill of Rights." From this premise, he reasons that "[w]e must treat the right to keep and bear arms like other enumerated rights." He then says that the majority treats the Second Amendment differently.

My problem with this line of thought is that the individual parts of the Bill of Rights are not equal to each other. Some are incorporated and some are not. Some receive robust judicial protection and others do not. The 10th Amendment is not equal to the First Amendment, for example. Perhaps they should all be equal, but I am skeptical of that claim given my research on the Bill of Rights.

Criticisms about the application of Heller rest on an assumption that the Second Amendment should be treated like the First Amendment. (Indeed, most of the cases cited by Judge Bibas's dissent are First Amendment cases, though he also cites some equal protection cases). Again, maybe this should be the law, but there is no particular reason to think that this must be true. I think it is fair to say that Heller should not be compared to the few remaining unincorporated rights, but I'm not sure which, if any, part of the Bill of Rights provides the best analogy for gun possession. 

Posted by Gerard Magliocca on January 16, 2019 at 03:17 PM | Permalink


It goes without blogging that the second amendment isn't the only under-enforced, second-class constitutional guarantee.

Just read a few of Justice Brennan, Marshall, or Stevens dissents on the exclusionary rule or the miranda warning. Or try Ginsburg's dissents on abortion and sexual harassment. Or perhaps Scalia's dissents on Freedom of Religion and the right to a trial by jury.

Just because all of these rights might also be under-enforced compared to freedom of speech, doesn't mean that it is also therefore OK to treat the right to keep and bear arms as a second-class right too.

That's like telling me it's OK to under-feed my second child because I wasn't able to properly feed my first child at the same age.

Posted by: Nathan Obvious | Jan 20, 2019 2:53:42 AM

I have a draft article out that addresses the array of "second-class" claims relating to the Second Amendment:


Posted by: Tim Zick | Jan 19, 2019 12:37:32 PM

Pair of Nickeles, and , His Unholiness... ,

Read again,the issue is not the content or the subjective value or perception of one constitution and its provisions.But rather,what is the nature,the Universal nature of a constitution and constitutional rights.That's it !!

Posted by: El roam | Jan 18, 2019 4:33:01 AM

Perhaps you could simply start with which Warren Court precedents DO apply in the second amendment context and which state and federal gun-control laws should be struck down under them, so we have some concrete examples of exactly how the second amendment DOES work--so we don't have to just use the first amendment paradigm as the paradigmatic exemplar.

Posted by: Pair of Nickles | Jan 18, 2019 1:42:20 AM

El Roam--

The German constitution is an example of a good constitution? They can't even protect the right to homeschool. The Chinese treat their people, like the Tibetans, with more dignity and respect.

Posted by: His UnHoliness the Dolly Camel | Jan 17, 2019 8:56:52 PM

Just to demonstrate from other constitutions(the abstract right or phrasing):

Here the Germany 1949 (rev.2014) here article 1.1 :


1. Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

And article 2 :


1. Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.

2. Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.

End of quotation:

So, we can see the abstract and generality of the constitutional provisions.And for example I quote again isolated one:

" Every person shall have the right to life and physical integrity "

But, whether has to do with the right for bearing gun for example,is rather related to law, concrete law, not with the abstract provision. And, stating when a public authority can violate this provision,is pursuant to specific provisions defined by law, has to do indeed with the law.Specific one.

So, this is the real nature of constitution. Not always of course phrased so. But, this is the right model or nature or necessity.

To the constitution ( German ):



Posted by: El roam | Jan 17, 2019 6:25:08 PM

I like amendments like I like the road, concrete,

I quote from a Supreme court ruling, has to do with: search in cell phone, and expectation for privacy, here I quote:

The fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely. Not every search “is acceptable solely because a person is in custody.” Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 26). To the contrary, when “privacy-related concerns are weighty enough” a “search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.”

End of quotation:

So, the expectation is of the person ( and society ). And has to do with, the domain. The nature of the domain. If the person is in his house, he has greater expectation ( private domain ) but, if in public domain, or detained, he has diminished expectation for privacy.

And of course, you can learn, that the fourth amendment, is implied upon searches of cell phones for example. What the constitutional legislator , couldn't predict of course, yet, encompass such instruments of course.

To the ruling:



Posted by: El roam | Jan 17, 2019 4:58:51 PM

I like amendments like I like the road, concrete,

Well, the text cited, is simply irrelevant,or rather even support the fundamental principle presented by me:

For it is stating : " breach of some abstract " expectation of privacy ".It does associate "abstract" with "expectation",not the provision itself of course, or not with the way such provisions should be drafted. And, it is including : person, houses, papers, and effects. So, you wouldn't need separate provisions for each one, but, general protection. And what if the law maker at the time, couldn't imagine : cell phones, computers, and the Internet generally speaking obviously ? It would have been excluded ?? Maybe legislating new one ?? With separate protection for each one new item ?? Of course not !! That is the issue with the gun, as I have explained already.

P.S : reasonable expectation has to do mainly, with differentiating, between public domain ( naked eye view, plain view ) and, private domain. At the latter, one may have reasonable expectation for privacy according to jurisprudence, not at the former, generally speaking.


Posted by: El roam | Jan 17, 2019 4:29:53 PM

Amendments aren't abstract.

"Katz’s problems start with the text and original understanding of the Fourth Amendment, as Justice Thomas thoughtfully explains today. Ante, at 5–17 (dissenting opinion). The Amendment’s protections do not depend on the breach of some abstract “expectation of privacy” whose contours are left to the judicial imagination. Much more concretely, it protects your “person,” and your “houses, papers, and effects.” Nor does your right to bring a Fourth Amendment claim depend on whether a judge happens to agree that your subjective expectation to privacy is a “reasonable” one. Under its plain terms, the Amendment grants you the right to invoke its guarantees whenever one of your protected things (your person, your house, your papers, or your effects) is unreasonably searched or seized. Period."
-Justice Gorsuch in Carpenter v. United States (June 22, 2018)

Posted by: I like amendments like I like the road, concrete | Jan 17, 2019 4:09:49 PM

And again, just for making it,absolutely clear:

Why does every supreme court decision end with the words, "void for the second amendment"--just like every federal law ends with "in interstate commerce"?

Whether they're striking down laws prohibiting selling stuff (like porn) through the mail, or prohibiting selling stuff between states (like alcohol), EVERY court decision fails to apply to the second amendment, why?

Posted by: Mance | Jan 17, 2019 3:46:03 PM

And again, just for making it,absolutely clear:

I am not anti guns or pro guns.But rather,stating that:

Bearing a gun, this is legal right ( up to the legislator ) but the constitutional right, is to be protected and first, by the government.The constitutional right,must be general and abstract ( like privacy, which is not, the right not to be monitored by camera, but general right for privacy ). So, the nature of the right to bear a gun,and even if not constitutional right by nature,is a legal right, specific right, concrete one. This is its nature. It belongs to law, not to constitution,but derives from the abstract one: to be protected and feel or being safe.


Posted by: El roam | Jan 17, 2019 6:35:31 AM

Cortez's 70%,

The same for self defense or being protected, for a person has that right, whatsoever, with guns or without guns. The issue, is not that :

But, abstract right(constitutional, right to be protected ) Vs. concrete ( legal right, to carry a gun).

And above all:One may carry a gun, with no need for self defense ( acute need ) and this is the issue, a person doesn't need to wait for failure of government.He can bear arm, while perfectly protected anyway(differentiated from education as illustration).If he has a government to protect him, he needs another burden of proof. Read again my comments.


Posted by: El roam | Jan 17, 2019 5:38:34 AM

"The government would be obligated to provide effective arms to those who could not otherwise afford them."

Obamacare covers prosthetic arms. Done and Done.

Posted by: ACA eh | Jan 16, 2019 11:20:01 PM

If the second amendment were interpreted as the sixth amendment, Americans would have the right not only to bear arms, but to bear effective arms. The government would be obligated to provide effective arms to those who could not otherwise afford them.

Posted by: arthur | Jan 16, 2019 10:15:31 PM

"Only if a person, proves,that government,is failing in protecting him,he can have constitutional right to self defense"

Only if a person, proves that government is failing in educating him can he have a constitutional right to homeschooling.

Nope. The right of parents to control the upbringing of their child is sacrosanct regardless of the qualities of the public school system. Your rights don't disappear because socialized schools, or fire departments, or police can do the job better than you.

Posted by: Cortez's 70% | Jan 16, 2019 8:53:27 PM

And just to demonstrate the anachronism of the second amendment issue.I quote from:the circuit court (district of Columbia,Appeal from the United States District Court for the District of Columbia , in shelly praker v. district of Columbia)here:

" In the Second Amendment debate, there are two camps. On one side are the collective right theorists who argue that the Amendment protects only a right of the various state governments to preserve and arm their militias.So understood, the right amounts to an expression of militant federalism, prohibiting the federal government from denuding the states of their armed fighting forces. On the other side of the debate are those who argue that the Second Amendment protects a right of individuals to possess arms for private use."

End of quotation:

Yet,whatsoever,the right to be protected or the right for self defense,is the general constitutional abstract right. While,the right to carry a gun,is a particularized or concrete legal right,not constitutional,as well demonstrated down there in my comments.Only if a person, proves,that government,is failing in protecting him,he can have constitutional right to self defense,or being protected,while having legal right,to carry a gun or whatever.But,old days of federalism and militias,have nothing to do with it.

Of course,this is not reality and what is actually written or perceived,but,I needed to demonstrate,basic principle in constitutional law.The rest,a mistake,although still breathing of course.But just for the methodology of illustrating the : upper hand,lower hand in constitutional rights.

here to the ruling:



Posted by: El roam | Jan 16, 2019 8:11:44 PM

Freedom is for entertainment,not just self-defense,

Let me quote from the government's reply in the case of Apple , here:

Apple asserts that functional source code in a corporation’s commercial product is core protected speech, such that asking it to modify that software on one device—to permit the execution of a lawful warrant—is compelled speech in violation of the First Amendment.

Now here the First amendment,I quote:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

You see,it's easy .... No connection on earth(just after the fact,not in fact,not by the language whatsoever, nothing which has to do with compelling a firm to write a program for bypassing code).

You can reach here the government's reply from where I have quoted :


And that is why,constitutional right,must be abstract,not particular.For,it must support variant unpredictable situations(unpredictable by the law maker at the time of legislation) and stand in time or changes occurring in time ( like the appearance of the internet).

As such,the right for bearing arms,is not constitutional right,it does appear so of course in the constitution,written so,but,this is strict mistake,and in fact anachronism has to do with older days.


Posted by: El roam | Jan 16, 2019 6:57:27 PM

Freedom is for entertainment,not just self-defense,

Read well, read carefully,because you haven't understand things here all around .First, one put argument, coherent and general, not :

" That's like telling me...."

Even so, you have, vaguely although,repeated and justified what I wrote:

For,The first amendment,is not the right to learn,even not the right to speak freely only :

But, the abstract right,from which,other particular rights stem.Example:

The right to petition for information.The right to collect data. The right of Apple,not be compelled by the FBI to unlock an Iphone.

That's life. That is the basic of basic of the constitutional law.

Now read again, and carefully( and just putting a sequence of Vs... won't do ).

And if it would make it easier on you,here titled:

In Fighting FBI, Apple Says Free Speech Rights Mean No Forced Coding


And ask yourself,whether it is reasonable,to write in a constitution,that not compelling a person or a firm , to write program,is a constitutional right.

G .... I can't believe that I have written all this


Posted by: El roam | Jan 16, 2019 6:35:31 PM

"The substantial right, is the right for self defense, not bearing arms."

That's like telling me that the right of free speech in the first amendment is the right to learn, and if we could only upload info directly into your brain, like in the matrix, the government could legitimately and justly ban all books.
Or that if we could procreate with IVF, the government could legitimately and justly ban homosexual anal sex.

This is not how liberty works.

The essential characteristic of these liberties is that, under their shield, many types of life, character, opinion and belief can develop unmolested and unobstructed. (Cantwell v. Connecticut)

To be reasonable, time, place, and manner restrictions not only must serve significant state interests, but also must leave open adequate alternative channels of communication. [. . .] Here, the Borough totally excludes all live entertainment, including nonobscene nude dancing that is otherwise protected by the First Amendment. (Schad v. Borough of Mount Ephraim )

Posted by: Freedom is for entertainment, not just self-defense | Jan 16, 2019 5:41:42 PM

I will say more Orin, but it may take a few days.

Posted by: Gerard | Jan 16, 2019 5:07:04 PM

"As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion."
-Ullmann v. United States (March 26, 1956)

Do we apply any constitutional doctrine to the second amendment?

Have we banned excise taxes on guns, like in Grosjean and Minnesota?

Have we banned waiting periods, like in Akron?

Have we banned background checks, like in Packingham?

Have we gotten rid of training and tests, like in Louisiana v. US?

Have we gotten rid of permits, like in Hague v. CIO?

Have we gotten rid of fees, like in Harper?

Have we applied the right to private actors, like in Jones v. Alfred?

Do we allow people to exercise their right anonymously (i.e., concealed carry), like in Watchtower v. Village?

Do we allow facial challenges to gun-control laws, like in Broadrick v. Oklahoma?

Do we apply the overbreadth doctrine, like in Brown v. EMA?

Do we apply the least-restrictive means test, like in Ashcroft v. ACLU?

Do we ban gun registries, like we ban reporting requirements in Thornburgh?

Do we include modern firearms like semi-autos, like in Kyollo?

Posted by: Faretta | Jan 16, 2019 4:31:46 PM

Typically, the fact that a constitutional right, has been incorporated or not, doesn't change much. This is because, no constitutional right, can have upper hand upon one other. In reality, or practically, what counts, is not the theoretical right, but rather, striking balance between one and the other, and all, in light of a case, or given legal situation :

Suppose that a person has constitutional right for privacy. it is theoretical or irrelevant, until a case or relevant situation is formed. When a situation is formed,one will have typically to strike balance between the right for privacy for example, and :

Public safety. Then, the latter might have upper hand over the former, and a search shall take place ( upon the person, or his house or whatever ).

So, only in light of tension between both ( privacy Vs. public safety ) one shall have the upper hand. But, theoretically, non has upper hand of course. Why ?? because, striking balance, in light of given particular concrete situation, would define it, in ad hoc terms.

Yet, with the second amendment, we have particular issue:

This is because, the right to bear arms or weapon, is too particularized. The substantial right, is the right for self defense, not bearing arms. Bearing arms, only if it is proven clearly, that government, doesn't provide adequate protection, and bearing arms shall solve it.

Strictly, not abstract principle. A constitutional principle should be abstract one ( in our case : for self defense ). It is as if :

You would prescribe in a constitution, that a person, has the constitutional right not to be monitored by a camera ( emphasizing : camera ) in his private one. But rather :

It is the general and abstract right, for privacy.And because it is abstract, it doesn't matter, whether incorporated or not typically.


Posted by: El roam | Jan 16, 2019 4:08:02 PM

Interesting post. You write: "Perhaps they should all be equal, but I am skeptical of that claim given my research on the Bill of Rights."

Can you say more?

Posted by: Orin Kerr | Jan 16, 2019 3:50:17 PM

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