Second Amendment…or Second-Class Amendment? – AMAC Magazine Exclusive

AMAC Magazine Exclusive – By David G. Weber

After the American Revolution, George Washington observed that “our Republic” had “assumed its rank among the Nations,” but warned that responsibility for preserving hard-won liberty fell upon the people. “If our citizens should not be completely free,” he said, “the fault will be entirely their own.” To ensure liberty endured, the Founders gave us the greatest charter of self-government ever devised—our Constitution—and enshrined in it safeguards against governmental overreach, not least among them that “the right of the people to keep and bear Arms, shall not be infringed.”

The security of the republic and the liberty of the individual rest in an armed citizenry. James Madison emphasized this in Federalist No. 46, citing Americans’ “advantage of being armed” as a critical check against tyranny—one validated by their experience under British rule. Indeed, the opening battles of the American Revolution at Lexington and Concord were sparked by British efforts to seize colonial arms. Underscoring the Founders’ conviction, early federal law required that citizens possess arms and bring them when the militia was mustered. As George Mason avowed, “What is the militia? It is the whole people, except for a few public officials.”

How times have changed. Today’s hard-left lawmakers, supported by an anti-gun lobby and media culture steeped in propaganda, embrace an agenda aimed squarely at disarming the American people. Blue-state bureaucrats are the most flagrant offenders, pursuing a strategy of death by a thousand laws intended to nullify the Second Amendment. Through flawed rulings—some illogical and bordering on malfeasance, others the product of pure judicial activism—lower courts have provided legal cover for novel regulations that conflict with the Constitution’s text and historical tradition.

Compounding matters is the US Supreme Court’s longstanding reluctance to grant review in Second Amendment cases. Given the time afforded to other constitutional questions, the historical rarity of Second Amendment review fuels a false perception that it is a disfavored right, relegated to second-class status. Despite paying more attention to this topic in recent decades, the absence of consistent and timely intervention from our nation’s highest court has allowed anti-gunners to unravel many of the Second Amendment’s protections, statute by statute.

On the occasions when the Supreme Court has squarely addressed the Second Amendment, it has consistently affirmed its original purpose and meaningfully constrained attempts to undermine the right to keep and bear arms.

District of Columbia v. Heller (2008): In striking down a Washington, DC, rule that banned handguns and required that firearms be kept inoperable, the Supreme Court affirmed that the Second Amendment protects an individual’s right to keep and bear arms for lawful purposes, including self-defense within the home, and held that arms in common use for lawful purposes cannot be banned.

McDonald v. City of Chicago (2010): The Court held that the Second Amendment right recognized in Heller applies to the states through the Fourteenth Amendment’s Due Process Clause. As a result, state and local governments are prohibited from enacting laws that violate the right to keep and bear arms.

Caetano v. Massachusetts (2016): The Court vacated a Massachusetts conviction for possession of a stun gun, reaffirming that the Second Amendment applies to arms not in existence at the time of the nation’s founding and protects arms in common use for lawful purposes.

New York State Rifle & Pistol Association v. Bruen (2022): The Court invalidated New York’s discretionary licensing scheme for carrying firearms in public, holding that the Second Amendment protects the right to carry arms outside the home for self-defense. It also established a clear legal framework requiring lower courts to evaluate gun regulations based on the text of the Second Amendment and the nation’s historical tradition of firearms regulation, rather than interest-balancing tests.

Even with this powerful body of precedent, anti-gun policymakers move swiftly to circumvent the Court’s rulings, underscoring the need for the Court to respond with equal speed and decisiveness if the Second Amendment is to retain its teeth. As a result, core constitutional questions remain unanswered directly.

For years, the Second Amendment community has waited for the Supreme Court to address challenges to bans on so-called “military-style assault weapons” (common semiautomatic rifles) and “high-capacity” magazines (common ammunition feeding devices). The Court has repeatedly denied such challenges, even as lower courts openly defy its well-established precedent that “arms in common use for lawful purposes cannot be banned.”

In 2025, the Supreme Court again turned away two monumental cases­—Snope v. Brown, which challenged Maryland’s rifle ban, and Ocean State Tactical v. Rhode Island, which squarely questioned the constitutionality of magazine bans. A ruling on either would have reshaped Second Amendment jurisprudence, invalidating many unconstitutional arms regulations nationwide. Instead, both cases were denied, leaving legal contradictions intact.

Whether the Supreme Court is waiting for deeper divisions among the nation’s circuit courts before addressing these constitutional questions, or some other tipping point, its direct response is critical. Until that day, the people will continue to bear the brunt.

States hostile to the Second Amendment have mistaken the Court’s silence as permission to press forward, enacting sweeping laws criminalizing the possession of common arms owned by tens of millions of law-abiding Americans. At the same time, lower courts, notably in the Ninth and Seventh Circuits, have used that silence as cover to uphold laws that conflict with the Supreme Court’s decisions in Heller, McDonald, and Bruen. What’s left is a patchwork of laws wherein a fundamental right hinges on geography rather than the Constitution itself. Still, Justice Brett Kavanaugh’s June 2025 statement that the Court is likely to take up a state “assault-weapons” ban “within the next term or two” offers tentative hope.

Today, the Supreme Court has another opportunity to correct persistent lower court misbehavior and to reaffirm the Second Amendment’s proper place in the constitutional order. Viramontes v. Cook County, challenging Illinois’s rifle ban, and Duncan v. Bonta, challenging California’s magazine ban, are currently before the Court for consideration. Both cases present clean, unavoidable questions that speak to the heart of the Second Amendment. If review is granted—and that’s a big if—confidence in the outcome rests in the Court’s own precedent. If not, justice delayed is justice denied once again.

Freedom is easier to lose than to reclaim. If our Constitution rests on the cornerstone that “We the People” are the sovereign authority, then “the right of the people to keep and bear Arms” is certainly its keystone, locking every other liberty into place. Remove the keystone, and the entire structure collapses.