Standing Our Legal Ground: Reclaiming the Duties Within Second Amendment Rights Cases

Christopher N.J. Roberts.

The Supreme Court is likely to hear another contentious Second Amendment gun case in the near future. This Article argues that focusing exclusively on rights—the dominant mode of legal analysis in such cases—is, ironically, not the appropriate foundational starting point. By pitting competing personal interests and incompatible rights claims against one another, this legal issue is likely to devolve into a dispute over politics and ideologies rather than law. If we are to prevent the next Second Amendment Supreme Court case from drifting away from its legal moorings into another ideological contest, this Article suggests that the appropriate starting point begins with recognition of one of the most basic, yet widely overlooked legal propositions: For every right there is a correlative duty. Interestingly, although every legal right must be associated with a legal duty, this analysis of the recent District of Columbia v. Heller gun case shows that the subject of duties is almost entirely absent from consideration. This analysis shows that without duties, legal rights are reduced to mere politics—one-way paths directed toward individual interests, political purposes, and ideological ends. The analytic framework outlined in this Article not only offers a nuanced and precise rendering of how our Constitutional rights operate in context, it also provides the theoretical and conceptual scaffolding necessary for the empirical study of these rights.

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