Constructing a Constitutional Right: Borrowing and Second Amendment Design Choices

Abstract

In fleshing out the contours of the nascent Second Amendment right, both courts and commentators have looked to established constitutional rights for guidance. Many, for example, have imported the analytical scaffolding of the First Amendment, including its heightened protection for “core” constitutional conduct and measured review for regulations akin to “time, place, and manner” restrictions. Others have lifted the “undue burden” test from its context in reproductive-autonomy jurisprudence to assess the burden a law imposes on the right to keep and carry firearms. Still others have found a parallel in the historical inquiry required to evaluate claims under the Seventh Amendment.

Drawing on the concept of constitutional borrowing, this Article is the first to systematically trace these links between the Second Amendment and other constitutional rights. It explores the sources from which Second Amendment cases and commentators borrow, and why they do so. And, after tracing these links, the Article explains how we should evaluate these instances of borrowing the same way we evaluate other types of analogical reasoning in law: by whether they are grounded in relevant similarities. Finally, the Article argues that current borrowing in Second Amendment jurisprudence falls short in two ways and then sketches a path forward. First, it ought to pay more attention to the theoretical underpinnings for the right to keep and bear arms; and second, the practice ought to pay more attention to the reasons why some elements should be borrowed from one rights domain while others should be rejected.

Keywords: Second Amendment, constitutional borrowing