Why the Second Amendment is not (and should never be?) "part of normal constitutional law"

Earlier this week, the Seventh Circuit issued a lengthy and detailed ruling in Ezell v. Chicago (available here), which issued a preliminary injunction against Chicago gun range ban based on the Second Amendment.  The Ezell ruling is both interesting and intricate; in this extended new post over at The Volokh Conspiracy, Second Amendment scholar and fan David Kopel astutely explains how and why "Ezell v. Chicago is a tremendously important case for Second Amendment doctrine."

I share Kopel's view about the importance of the Ezell opinion, and I recommend highly his summary and assessment of Ezell in his astute post.  However, as evidenced by the title of my post here, I want to take issue with a key assertion Kopel makes at the start of the (otherwise astute) concluding paragraph of his post.  Kopel finishes with these summary observation about what Ezell tells us:

In short, the Second Amendment is part of normal constitutional law.  The standard of review is not the absolutist “What part of ‘shall not be infringed’ don’t you understand?’” Nor is the standard “reasonableness” as a euphemism for “rational basis so long as all guns are not banned”; nor the weak “undue burden” standard that was invented for one particular unenumerated right which is an extreme outlier in the weakness of its basis in history, tradition, and other sources for unenumerated rights.  Intermediate scrutiny does apply sometimes, as with the First Amendment, and, also as with the First Amendment, stricter scrutiny applies at other times.  As with much of the rest of 21st century constitutional law, the interpretive methodology includes both originalism and a practical analysis which some persons would call “living constitutionalism.”

The problem I have is with the claim that Ezell demostratrates that the Second Amendment is "part of normal constitutional law," principally because Ezell distinguishes the Seventh Circuit's approval in Skoein of the federal crime prohibiting certain misdemeanants from possessing guns (basics here) by emphasizing that only "law-abiding, responsible citizens" get full Second Amendment protection.  If Second Amendment rights and jurisprudence truly depends and pivots on who is deemed a "law-abiding, responsible citizen," then the Second Amendment is not part of normal constitutional law because I know of no other constitutional right that only protects "law-abiding, responsible citizens."

Of course, a citizen's constitutional rights can and often are diminished or extinguished as a result of conviction and sentencing for a crime.  Incarcerated prisoners, in addition to obviously losing many liberty rights, also generally have no Fourth Amendment rights and have very limited First Amendment rights.  Similarly, duly imposed conditions of probation and/or parole that are part of a formal criminal sentence can lawfully result in restrictions on otherwise constitutional activities and liberties.

However, as I have explained in some prior posts, I am not aware of any other fundamental rights expressly protected by the Bill of Rights which are forever lost or forfeited whenever a person has ever once previously broken the law or been less than "responsible" in their behavior.  Indeed, I think we would be deeply troubled by a constitutional jurisprudence that held that once a citizen was ever convicted of any crime, even just a misdemeanor (e.g., speeding, littering), then that person never again has any First Amendment right to free speech or to attend church or any Fifth Amendment right to prevent the taking of their property or any Sixth Amendment to confront witnesses or to counsel in a criminal trial. 

In posts in the wake of Heller, I had predicted and feared that Second Amendment doctrine would start distinguishing between good "law-abiding, responsible citizens" people who get protected by this fundamental constitutional right and bad "other citizens" who get little or no constitutional protection.  The important Ezell opinion suggests the doctrine is developing in just this way, and that reality leads me to balk when Kopel asserts that "the Second Amendment is part of normal constitutional law." 

Or, to cast my concerns in a different light, I suggest we all should be very concerned if and when "normal constitutional law" starts to embrace and enforce significant distinctions between good "law-abiding, responsible citizens" people who get protected by constitutional rights and bad "other citizens" who get little or no constitutional protection.  I genuinely fear that this kind of "normal" constitutional doctrine, which is now emerging in the Second Amendment setting, very well could start a path toward the significant formal and/or functional reduction of many fundamental constitutional rights and liberties.

A few related Second Amendment posts:

• Can dismissed domestic violence complaint justify revoking gun permit?
• Split en banc Seventh Circuit in Skoien upholds categorical exclusion of DV misdemeanant from Second Amendment
• Skoien and the many challenges of Second Amendment jurisprudence
• Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
• Assailing the unjustified Second Amendment limits in Heller
• "The Standardless Second Amendment"
• Fourth Circuit orders Second Amendment hearing to assess constitutionality of § 922(g)(9)