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The Warren Court Supersized the First Amendment…Now It’s Time for the Second Amendment

Clarence Thomas
Supreme Court Associate Justice Clarence Thomas (AP Photo/Pablo Martinez Monsivais)

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The oral argument in Bruen demonstrates that the conservative wing of the court is not sincerely interested in history, text, and tradition if the evidence cuts against them. What they are intent on doing is vindicating gun rights, rewarding the base of the Republican Party, and recasting the scope of the Second Amendment so that it resembles other modern rights transformed by the Warren Court and left-leaning champions of a living constitution.

In his opening remarks, Paul Clement correctly noted that the current scope of Second Amendment rights does not match the robustness of modern First Amendment rights or criminal procedure rights. But the operative word here is modern.

The original understandings of the First Amendment and criminal procedure rights, both in the founding era and the period of Reconstruction, were anemic by contemporary standards. There is nothing inherently wrong with Republicans and their Federalist Society–groomed justices supersizing the Second Amendment.

The left got its supersized rights in the 1960s, so now it is the right’s turn. The one thing such an approach is not consistent with is the right’s claim that originalism is principled, neutral, and intellectually rigorous.

— Saul Cornell in The Supreme Court’s Latest Gun Case Made a Mockery of Originalism

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