CONSTRUCTING A CONSTITUTIONAL RIGHT: BORROWING AND SECOND AMENDMENT DESIGN CHOICES

In fleshing out the contours of the nascent Second Amendment, both courts and commentators have looked to established constitutional rights for guidance. Many, for example, have imported the analytical scaffolding of the First Amendment, including its heightened protection for "core" constitutional conduct and measured review for regulations akin to "time, place, and manner" restrictions. Others have lifted the "undue burden" test from its context in reproductive-autonomy jurisprudence to assess the burden a law imposes on the right to keep and carry firearms. Still others have found a parallel in the historical inquiry required to evaluate claims under the Seventh Amendment.