Document Type

Article

Publication Date

2017

Abstract

This Article examines the Supreme Court's recent Second Amendment cases as applications of the same libertarian bias that has undermined constitutional law's fundamental rights doctrine. The concept of a libertarian bias that is based in a New Lochnerism was previously introduced in both The Fifth Freedom and The New Due Process. The analysis here demonstrates that the recently revised doctrine regarding the Second Amendment and gun rights is driven by the current Supreme Court ("Court") hostility towards government regulation in a manner that is akin to what was seen during the Lochner Era. Regrettably, this Article is timely and is expected to continue to be so in light of ongoing gun violence and mass shootings that continue to plague the United States, including the recent mass shooting in Orlando, Florida. The Court's decisions have cast a long legal shadow, which has resulted in states and the federal government becoming justifiably fearful of running afoul of the Court's latest Second Amendment limitations espoused in District of Columbia. v. Heller and McDonald v. City of Chicago. This is a legitimate fear, given that the current Second Amendment limits are grounded in neither the text of the Constitution nor precedent, which makes it difficult for lawmakers to accurately predict what the Court will next deign to be impermissible. Although not the sole cause of regulatory paralysis in the face of widespread gun violence and mass shootings, the Court's gun rights decisions have certainly contributed to the reluctance of state and federal law makers to pass meaningful gun regulations. The Court's decisions to limit the ability of government to regulate firearms has real consequences that cannot be ignored and should not be dismissed as collateral to individual rights or as in tension with those rights. This Article suggests that public safety is a right; a positive right that is fundamental under the Constitution. This discussion begins in Part II by introducing the Lochner Era and its regulatory goals of protecting liberty, limiting government regulation, and protecting federalism and states' rights. Part III examines how the Court has once again privileged liberty over duty through its radical reinterpretation of the Second Amendment in District of Columbia v. Heller and McDonald v. City of Chicago. The Court has applied its libertarian bias and lost sight of the constitutional duties of government.! In the specific context of the Second Amendment and gun rights, the Court has lost sight of the duty to protect the public safety. Part IV examines the pre-Heller interpretation of the Second Amendment and suggests that this meaning was more consistent with the text of the Constitution, the intent of the founders, and the constitutional duty of government to protect the public safety.

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