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READING IS FUNDAMENTAL. GUNS MAY BE, TOO.
The word “fundamental” is fundamental to a lot of what we do. But as a vulgar kid, I was delighted to find out that the root word here – fundament – also meant “buttocks” or even “anus.” What a hoot that was for me back in 7th grade, when such knowledge carried a lot of juvenile humor with it.
Buttocks aside, “fundamental” carries significant constitutional implication, and the Supreme Court’s deliberate and repeated use of it in last week’s Wolford v. Lopez decision was no accident. In Wolford, the high court held that Hawaii’s restrictive firearms-carry law – that made a person lawfully packing heat get permission from any private owner from a neighbor to a store owner before entering the property – violated the 2nd Amendment. While the holding seems to have nothing to do with felon-in-possession laws, it suggests that SCOTUS is slowly moving toward a decision that 18 USC § 922(g)(1) can be unconstitutional when applied to nonviolent felons.
Writing in his Sentencing Law and Policy blog last week, Ohio State University law professor Doug Berman noted that the Wolford v Lopez opinion repeatedly referred to the right to possess a gun for self-defense as a “fundamental right” cited in District of Columbia v. Heller, the 2008 decision that is the great grandfather of modern 2nd Amendment jurisprudence.
Berman suggests the use of the term is no accident:
In this Wolford ruling (as well as last week’s Hemani ruling), the Justices are now acting and talking like the 2nd Amendment is to be regarded and safeguarded like other ‘fundamental Bill of Rights guarantees.’ But if that is true, I do not see how federal and state felon lifetime dispossession laws can be categorically upheld as consistent with the 2nd Amendment. I am unaware of any other fundamental constitutional right — or even fundamental common-law right such as the right of self-defense — that a person could forever lose on the basis of a prior conviction. Would anyone seriously claim that 1st Amendment protected activity, such as writing a book or going to church, could be permanently criminalized by governments if and whenever a person had a prior conviction? If that seems crazy under the 1st Amendment, it would seem modern doctrine also makes it crazy under the 2nd Amendment.
Berman called on SCOTUS to take[] up this issue and… explain what the “fundamental right recognized in Heller” fully means.
It’s not like the Court hasn’t had a chance to do so, as excellent vehicles like Vincent v. United States had been on the relist before whimpering to a certiorari denial. But like the old Brooklyn Dodgers plaint put it (especially appropriate as the Supremes leave town this week for summer recess), “Just wait until next year…”
Maybe.
Wolford v. Lopez, Case No. 24-1046, 2026 U.S. LEXIS 2720 (June 25, 2026)
United States v. Hemani, Case No. 24-1234, 2026 U.S. LEXIS 2559 (June 18, 2026)
District of Columbia v. Heller, 554 U.S. 570 (2008)
Sentencing Law and Policy, If truly a “fundamental right,” how can lifetime felon bans on gun possession square with the 2nd Amendment? (June 25, 2026)
~ Thomas L. Root