https://fedsoc.org/commentary/publications/bruen-s-preliminary-preservation-of-the-second-amendment
Nov 8 2022
Federalist Society Review, Volume 23
Topics: | Constitution • Second Amendment • Supreme Court |
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Sponsors: | Civil Rights Practice Group |
FEDERALIST SOCIETY REVIEW
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.1
Heller and Bruen both insist that the balance struck by the American people when they adopted the Second Amendment is the only balance to which courts should defer.[86] That’s right, but it will sometimes, perhaps often, be impossible as a practical matter to determine where that balance was struck without performing means-end scrutiny.
Trying to cast the adoption of the 2nd amendment or any of the guarantees of unalienable rights as a sort of ends-means balancing would strike our founders as strange. The only end they sought was to prevent tyranny and foster liberty. The only concerns of the founders about the guaranteeing of such rights concerned the powers of those whom uphold them. That is, they were much more concerned about their mis- and mal-application by tyrannical judges and politicians than a balancing public safety and the actual keeping and bearing of arms by the citizenry.
Only if a sufficient number of judges internalize the spirit of the Second Amendment will the Court’s jurisprudence come to reflect its original meaning. That spirit of self-confidence and self-reliance is also worth cultivating in all Americans because genuine political self-government is ultimately impossible without it.