Gun Shy: Four Supreme Court Justices Make Case Against Constitutional Rights

But unlike equal protection or freedom of speech, Stevens says, "firearms have a fundamentally ambivalent relationship to liberty." How so? "Just as they can help homeowners defend their families and property from intruders," he explains, "they can help thugs and insurrectionists murder innocent victims."

Every right can be abused, with results that are immoral, illegal or both. Freedom of speech can be used to spread hateful ideas, promote pernicious political philosophies, slander the innocent or engage in criminal conspiracies. If there were no potential for harm from exercising a right, there would be no need to protect it, because no one would try to restrict it.

The dissenters' most frivolous objection is that making states obey the Second Amendment "invites an avalanche of litigation," as Stevens puts it. Every day we hear about cases in which people argue that the government has violated their rights under the First, Fourth, Fifth, Sixth or Eighth amendment. Neither Stevens nor Breyer wants to stop this "avalanche." Only when the Second Amendment is added to the mix do they recoil in horror at the prospect that Americans will use the courts to vindicate their rights.

Stevens warns that "the practical significance of the proposition that 'the Second Amendment right is fully applicable to the states' remains to be worked out by this court over many, many years." But that's because the court for many, many years ignored the Second Amendment while gradually defining the contours of its neighbors in the Bill of Rights. There is a lot of catching up to do.