Fundamentally Speaking

So here’s where I think our arguments are passing in the ether, Jack. First, I’ve always understood there to be an at least doctrinal (perish the thought) distinction between “fundamental rights” and “everything in the Bill of Rights.” (So when, for example, we studied in law school why a state law forcing the sterilization of certain people was constitutionally problematic, it mattered in the court’s decision to apply strict scrutiny that in particular ”[m]arriage and procreation are fundamental to the very existence and survival of the race.”) 

I take you in recent posts to be arguing there’s no daylight between rights fundamental and any right in Amendments 1 through 8 (i.e. that “fundamental rights” include at a minimum everything in the Bill of Rights).  Among other things, then, I’m stuck with how to understand things like the grand jury right, on which the states have gotten a constitutional pass. Guess that falls into the Balkin given-a-chance-I’d-reverse bucket. 

Second, I wasn’t arguing that strict scrutiny should apply to regulations of Second Amendment rights, or indeed that strict scrutiny is what applies to everything in the first 10 amendments. Just the opposite (as I’d hoped was made clear when I noted , for example, “the highly contextual availability of those rights (even the great First Amendment)…”).  I was arguing that applying strict scrutiny (or something thereabouts) seemed like the necessary implication of your argument that the right to carry a handgun is “fundamental.” Because you apparently think Amendments 1-8 or 9 are all “fundamental,” I can see why you wouldn’t think that the necessary implication at all. Glad to have the record straight.