The Second Amendment as a Normal Right. It is rightfully harsh on how some federal circuit courts have treated the Second Amendment. Here’s an expert:
Suppose a state were to prohibit abortion at 20 weeks of gestation absent a doctorâ€™s certificate of â€œmedical emergency,â€ invoking â€œdocumented risks to womenâ€™s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.â€30 In a world where Kachalsky-style â€œscrutinyâ€ applied to the abortion right, it simply wouldnâ€™t be the courtsâ€™ job to second-guess a legislatureâ€™s regulatory oversight of the medical profession in the important interests of patient safety and prevention of cruelty. Yet when Arizona enacted just this law, the Ninth Circuit wasted no time striking it down:
Allowing a physician to decide if abortion is medically necessary is not the same as allowing a woman to decide whether to carry her own pregnancy to term. Moreover, regulations involve limitations as to the mode and manner of abortion, not preclusion of the choice to terminate a pregnancy altogether.31
The court properly made quick work of the theory that a fundamental right is not infringed when everyone is free to exercise it upon proving need.32 â€œThe presence of a medical exception does not make an otherwise impermissible prohibition constitutional. The adequacy of the medical exception has no bearing on whether the prohibition is permissible in the first place.â€33 Regardless of what the legislature may earnestly believe to be required in the interests of health and safety, the Supreme Court has guaranteed a womanâ€™s right to terminate pregnancy until viability.34 â€œThe twenty-week law is unconstitutional because it bans abortion at a pre-viability stage of pregnancy; no health exception, no matter how broad, could save it.â€35
Heller and McDonald leave no doubt that the Second Amendment must operate similarly, as a normal constitutional right…
Read the whole thing. The courts seem to know how to treat rights when a case involves a right that judges favor.