The Bill of Rights does not grant government permissions to people; rather, it recognizes and protects people’s rights that are antecedent to government. Legal scholar Dave Kopel explains this point in a recent article for The Volokh Conspiracy, noting that the first two Amendments are concerned primarily with recognizing individual rights, whereas other Amendments are “mainly controls on particular government processes” or “interpretive rules.”
Because both the First and Second Amendments recognize and protect individual rights—albeit in different spheres—the logic that applies to one often applies to the other, Kopel explains. So it makes sense that modern “courts have frequently looked to the First Amendment for guidance on Second Amendment questions.”
Among the gems Kopel offers is the following:
Not All Original Practices Are Per Se Constitutional Today. Laws against blasphemy or seditious libel are clear examples in the First Amendment context. They warn us to not accept uncritically every possible municipal gun law from the Founding Era.
What this means is that the Bill of Rights recognizes and protects individual rights—even if the Founders themselves misunderstood the nature of rights in a given area or passed laws that violated rights in some way. . . .
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