Only with the Second Amendment does government continue to arbitrarily restrict rights in such a manner.

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A well regulated Militia, being necessary to the security of a free State, the right of the people to keep Arms shall not be infringed.  

Astute readers will immediately note the glaring omission in that defective recitation of the Second Amendment’s text.  

Less astute readers, in contrast, will lose interest beyond the term “Militia,” smug in their false assurance that it confers some collective state governmental right, and not even notice the omitted words.    

Last week, the United States Supreme Court heard oral argument in New York State Rifle & Pistol Association v. Bruen, a potentially seminal case that may deliver a helpful corrective to those less astute readers.  Specifically, the Court can affirm that the Second Amendment protects the right to “bear” arms as well as “keep” them.  

In 2008, the Court finally affirmed in D.C. v. Heller that the Second Amendment confers an individual right of the people to possess firearms, not some sort of collective state right.  The Constitution employs the term “the people” multiple times in its text, always to confer an individual right, not some state collective right.  It makes no sense to contend, for instance, that the Fourth Amendment confers some collective state protection against unreasonable searches and seizures.  Moreover, the Bill of Rights in the text of the Tenth Amendment uses the terms “the states” and “the people” separately and distinctively, thus eviscerating any claim that the Founding Fathers somehow used them interchangeably.  

It’s a stain on Supreme Court jurisprudential history that it delayed affirming the Second Amendment’s individual right for over two centuries, but it nevertheless finally reached that correct conclusion in Heller.  

Unfortunately, the Heller ruling centered specifically on the right to keep arms in one’s home, remaining deliberately murky on the question of “bearing” arms outside the home.  

The overwhelming majority of states nevertheless respect the right to bear arms outside the home, as forty-four states require no demonstration of particularized need in order to carry guns.  Twenty-one of those states require no permit at all.  In six states, however – California, Hawaii, Maryland, Massachusetts, New Jersey and New York – the right to bear arms remains subject to governmental discretion.  

As the plaintiff New York State Rifle & Pistol Association notes in its brief, the state of New York goes so far as to require “proper cause,” which in turn demands showing of “special need” to obtain government approval:  

New York continues to make it all but impossible for typical, law-abiding citizens to exercise their right to bear arms where the right matters most and confrontations are most likely to occur: outside the home.  The only people who may carry a handgun beyond the curtilage are those who can show, to the satisfaction of at local official vested with broad discretion, that they have a special need for a handgun that distinguishes them from the vast bulk of “the people” protected by the Second Amendment.  As to everyone outside that small subset, there is no outlet to carry handguns for self-defense at all.  That restrictive and discretionary regime is upside down.  The Second Amendment makes the right to carry arms for self-defense the rule, not the exception.  

Ponder that for a moment.  Imagine a state government requiring a “proper cause” and a “special need” for a citizen to exercise his or her First Amendment freedom of speech, religion or assembly.  Or a “special need” for Fourth Amendment protection against unreasonable search and seizure, an Eighth Amendment protection against cruel and unusual punishment, a Nineteenth Amendment right to vote or a Twenty-First Amendment freedom to consume alcohol.  

Only with the Second Amendment does government continue to arbitrarily restrict rights in such a manner.  

Second Amendment opponents respond by falsely claiming that overturning New York’s law would somehow jeopardize restrictions on firearm possession in airports, churches, schools, courthouses and other vulnerable areas.  The Heller decision, however, specifically preempted that challenge by recognizing the validity of “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”  

In our increasingly mobile society, the right to “bear” arms beyond the confines of one’s home is even more vital today than the late 18th century.  Accordingly, government efforts to relegate the individual right to firearm possession recognized in Heller to a dead letter must be stricken.  

Regardless of how the Supreme Court rules, however, voters must remember that they ultimately possess the power to shape Second Amendment policy via the officials they elect to office as well.