Can Constitutional Rights Be Restricted?

Can Constitutional Rights Be Restricted?

With recent events returning the never-ending debate over “gun control” back to the headlines, it occurs to me that this would be a good opportunity to provide folks with a basic (and I mean very basic) primer on constitutional law and its application. Thus, I offer the following.

For purposes of this article, I’m going to limit my discussion to rights conveyed by the various amendments to the United States Constitution. Those rights, such as freedom of speech, freedom of religion, the right to a trial by jury, and the right to keep and bear arms are familiar to pretty much everyone. What people don’t seem to understand, however, is that our Supreme Court has consistently held that even the most basic of our constitutional rights can be subject to regulation or restriction. “Pardon me”, you say? “You’re telling me that constitutional rights can be restricted?” The answer is a very clear yes, although the standards that apply in such situations are difficult to meet.

Over the years, the U.S. Supreme Court has identified certain constitutional rights as “fundamental”. I won’t give you an exhaustive list of the rights that are within that group, but I can tell you that freedom of speech, the right of privacy, and the right to keep and bear arms all have been found to fit the definition of a fundamental right. In order to restrict such a right, the government has to demonstrate that it has a “compelling state interest” which the proposed restriction seeks to protect. For instance, in the case which legalized a woman’s right to obtain an abortion, the Supreme Court held that a woman’s right to privacy (a fundamental right) outweighed the claimed “state interest” in protecting the health of pregnant women in the first trimester of pregnancy. Similarly, the Court has also held that the compelling state interest in protecting children from exploitation outweighs the constitutionally-established right of freedom of speech. Thus, possessing or transmitting child pornography is illegal.

Even the Second Amendment itself has been limited, in ways that very few folks would question. The amendment provides that the right “of the people” to keep and bear arms is protected. No exceptions appear to limit which “people” the framers of the Constitution had in mind when they crafted this amendment, yet many such limitations exist, apparently without a lot of debate. A convicted felon is not only prohibited from possessing a firearm; he is subject to arrest and imprisonment if he has one. A person who has been adjudged to be mentally ill is also prohibited from purchasing a firearm, as is a person who has been convicted of domestic violence. Where in the Second Amendment do those qualifications on a fundamental constitutional right appear? The answer is nowhere. They don’t exist, yet few of us question whether they are appropriate. The same can be said of fully automatic weapons. Nowhere in the Second Amendment do we find a limitation on the types of weapons that citizens are permitted to own, yet possession of such a weapon is illegal.

In writing this article, I am certainly not trying to persuade the reader in one direction or another in terms of the gun control debate. I simply am trying to help people understand that even a right which appears in our Constitution is subject to regulation and restriction under the proper circumstances. If the government has a compelling interest it is seeking to protect, and the fundamental right the government seeks to restrict is fairly and narrowly regulated by the law in question, the restrictive law may be upheld by the courts. The question is not simply whether or not a constitutional right exists; the proper question is whether or not the state has a sufficiently compelling interest to justify restriction of that fundamental constitutional right. 

A very, very basic explanation of an extremely complex area of the law. I hope you find it to be informative, if not useful.


With gun control being an ever-present topic in today's society, John Artimez breaks down a bit of what exactly our constitutional rights mean.