With other rights, it seems the Court starts off by recognizing the right in broad terms, and over item slowly identifies exceptions and carve-outs that limit the right. The Second Amendment seems to have taken the opposite path.
Let’s use the Fourth Amendment and the exclusionary rule as an example. In Weeks v. United States (1914), and later in Mapp v. Ohio (1961), the Supreme Court adopted the so-called exclusionary rule, where evidence obtained in violation of the Fourth Amendment was inadmissible. Over time, the Court slowly found numerous exceptions to the rule. In United States v. Calandra, 414 U.S. 338 (1974), the Supreme Court ruled that grand juries may use illegally obtained evidence in questioning witnesses because “the damage to that institution from the unprecedented extension of the exclusionary rule…outweighs the benefit of any possible incremental deterrent effect.” In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court, adopted the “good faith” exception to exclusionary rule, holding that evidence seized by officers relying in good faith on a defective warrant was still admissible. In Nix v. Williams, 467 U.S. 431 (1984) the Court adopted the so-called “inevitable discovery” doctrine, such that evidence illegally seized without a search warrant is admissible if the prosecution can prove the evidence would have been found and seized by legal means not based on evidence or information illegally seized. In Arizona v. Evans, 514 U.S. 1 (1995) the Court concluded that the fruits of a search based on an arrest warrant that evidence illegally found without a search warrant is admissible if the evidence is later found and legally seized based on information independent of the illegal search. was no longer valid, but that was still listed in the police system because of an error by the issuing court’s clerk, should not be excluded because such exclusion would have no deterrent effect. In Herring v. United States (2009), the Court held that the good-faith exception to the exclusionary rule applies when a police officer makes an arrest based on an outstanding warrant in another jurisdiction, and the information is later found to be incorrect because of a negligent error by that agency.
There are more, but I’ll stop here.
Likewise, exceptions to the First Amendment–fighting words, obscenity, criminal incitement, libel/defamation–evolved over time, slowly limiting broader protections of free speech. The original right was broadly defined, and over time, the right was narrowed.
In contrast, it seems, the right as recognized in Heller is already quite limited and restricted. That long-standing restrictions are presumptively constitutional, and that laws governing the restrictions of guns in certain sensitive places are also valid, doesn’t leave much room for the second amendment to grow. Short of an out-right ban on the possession of handguns in the home, no other right is clearly protected, unless the Court says so. Such a couched initial definition of rights is a departure from the paths of over rights.
As to how Courts should develop the right, I really have no clue. In fact, I don’t even purport to have an answer. Judges will invariably do what judges do. My only point in writing these posts is to have Judges consider the Second Amendment in a different light than previous scholars and court opinions have cast it in. All rights are subject to certain reasonableness and balancing tests. I’m cool with that. I just want to make sure that the scales used to balance the Second Amendment are calibrated similarly to scales used to consider other rights. Ultimately, the next time this issue hits One First Street, I hope the Supreme Court looks at the Second Amendment in this new light. Until that happens, the lower courts will be left in the wind.