Making Second Amendment Law With First Amendment Rules: the Five-tier Free Speech Framework and Public Forum Doctrine in Second Amendment Jurisprudence

• Publication year: 2021

93 Nebraska L. Rev. 429. Making Second Amendment Law with First Amendment Rules: The Five-Tier Free Speech Framework and Public Forum Doctrine in Second Amendment Jurisprudence

Making Second Amendment Law with First Amendment Rules: The Five-Tier Free Speech Framework and Public Forum Doctrine in Second Amendment Jurisprudence

Kenneth A. Klukowski(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 430

II. The Second Amendment after Heller and McDonald . . . 433
A. An Individual Right Applicable to the States ....... 433
B. Myriad Questions Remain ......................... 437

III. Rationale and Limits of Applying This Framework tothe Second Amendment ............................... 440
A. Similarities Between First and Second Amendments ...................................... 441
B. Normative Principles of Per Se Rules and Strict Scrutiny .......................................... 444
1. Reviving Strict Scrutiny to be Sufficiently Strict .......................................... 444
2. Clarity of Per Se Rules ........................ 446
C. Disparities Between the First and Second Amendments ...................................... 447
1. Inherent Deadliness of Firearms ............... 448
2. Some Persons are Beyond the Scope of the Second Amendment ............................ 450
3. The Right to Bear Arms is a Right of Citizenship .................................... 452

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IV. A Three-Step Analysis for Second Amendment Cases Using Five Standards of Review ....................... 455
A. Five-Tiered Scrutiny Framework for Second Amendment ....................................... 457
B. Three Questions to Determine Proper Level of Scrutiny .......................................... 459
1. Step One: Whether the Amendment Applies . . . . 459
2. Step Two: Public Location Versus Private ...... 462
3. Step Three: Identifying Level of Scrutiny ....... 462

V. Three Forms of Heightened Scrutiny Apply to Burdenson the Second Amendment on Private Property ........ 463
A. Strict Scrutiny for Burdens on Core Second Amendment Right ................................. 466
1. Core Burdens Undermine the Purpose of the Amendment ................................... 467
2. The Standard Strict Scrutiny Formulation ..... 472
B. Per Se Invalidity for Firearm Bans or Confiscations ...................................... 472
C. Intermediate Scrutiny for Incidental Burdens ...... 478

VI. The Public Forum Doctrine Applies to Burdens on the Second Amendment on Public Property ................ 484
A. The Need for the Public Forum Doctrine for the Second Amendment ............................... 485
B. Applying the Four Types of Public Forum to the Second Amendment ............................... 487
1. Standard Framework for Traditional and Designated Public Forums ..................... 488
2. Additional Restrictions Permissible in Limited Public Forums ................................. 491
3. Reasonableness Test for Nonpublic Forums ..... 492

VII. Conclusion ............................................ 494

I. INTRODUCTION

The United States is half a decade into developing a jurisprudence applying the Second Amendment. If the jurisprudential balance of the Supreme Court shifts by a single vote, then it is distinctly possible that the Second Amendment could be effectively erased from the Constitution, as the Court could overrule the two foundational cases currently on the books or confine them to their facts. But assuming the Second Amendment survives these perils, the next quarter-century will likely see a series of Second Amendment cases develop a meaningful and consequential jurisprudence regarding a constitutional provision exercised daily by millions of Americans.

This would parallel the jurisprudence governing the Free Speech Clause of the First Amendment. That provision was barely developed

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before the Supreme Court held in 1919 that inciting imminent lawlessness is not protected by the First Amendment.(fn1) The number of free speech cases proliferated once the Court incorporated that right into the Fourteenth Amendment Due Process Clause in 1925.(fn2) The right to bear arms is poised to follow the same track.

As well it should. Americans only exercise many of their constitutional rights if they are suspected of running afoul of the law. However, since mere possession of a firearm is an exercise of the right to bear arms, Second Amendment rights are exercised daily by tens of millions of Americans, as are First Amendment rights. Parallels between free speech and gun rights suggest a common doctrinal framework could govern both.

An estimated 70 million or more Americans possess 310 million firearms,(fn3) regulated by as many as 20,000 gun laws at the federal, state, and local levels.(fn4) This essentially creates infinite permutations of fact patterns for judicial review of gun laws, determining whether a given gun law is unconstitutional when applied to certain persons under certain circumstances. Yet only two Supreme Court cases- both of recent vintage-currently provide direct guidance: District of Columbia v. Heller,(fn5) and McDonald v. Chicago.(fn6) Courts are only now beginning to grapple with the magnitude of the task of devising a framework to govern such multitudinous possibilities.

There is a growing need for such a framework. A federal appeals court said in 2009 in one Second Amendment case what could be said in most Second Amendment cases currently in the courts: "The government has approached this case as though all it had to do to defend

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the constitutionality of [the gun-control law at issue] is invoke Heller's language about certain 'presumptively lawful' gun regulations . . . . Not so."(fn7) By contrast, the Second Amendment may not be "singled out for special-and specially unfavorable-treatment."(fn8) Nor does Heller allow courts to apply uniformly some intermediate-scrutiny standard that effectively defers to legislatures, giving significant weight to assertions of personal liberty under the Second Amendment while also giving government significant latitude to restrict that liberty. Just as the Court firmly rejected "a free-floating test for First Amendment coverage . . . [utilizing] an ad hoc balancing of relative social costs and benefits,"(fn9) so too the Court rejected Justice Stephen Breyer's proposed "interest-balancing" approach to Second Amendment cases.(fn10)

There is no need to reinvent the jurisprudential wheel. Rather than spending years devising a series of tests to reach correct judgments in a rapidly building wave of Second Amendment litigation, judges should recur to a framework that has served the Nation and the law quite well for many years. Although a universal theory to govern constitutional law continues to elude the judiciary and the academy, a common framework governing two commonly-exercised constitutional liberties-conveniently situated in adjacent Amendments-is philosophically attractive in moving incrementally toward a coherent and consistent system of constitutional review.

The five-tiered framework of standards of review that governs the First Amendment should also govern the Second Amendment. Three levels of scrutiny apply to speech on private land, depending on the nature of the burden on speech, ranging from per se invalidity, to strict scrutiny, to intermediate scrutiny. Two additional levels of restrictions are constitutionally permissible on public land under the public forum doctrine: one allows limitations to preserve the forum for the purpose for which the public has access to the government property, and in the case of a nonpublic forum, the test is mere reasonableness.

Many in law school learn the adage, "Hard facts make bad law." This Article's approach facilitates robust protections for law-abiding Americans as they seek to own and carry common firearms in their daily lives, while enabling government to address public-safety concerns regarding dangerous persons, unusually-dangerous weapons, and sensitive locations. The federal courts of appeals for several circuits generally support this approach,(fn11) as do several leading schol-

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ars.(fn12) Courts do not face a binary choice of upholding severe restrictions on a person's gun ownership in his own home or allowing that same person to carry a machinegun into the White House. Neither is acceptable, nor mandated by the Constitution.

Part II of this Article sets forth the current state of the law on the Second Amendment. Part III discusses the proposed approach for Second Amendment judicial review, consisting of a three-step inquiry. These three steps dictate which of five levels of scrutiny should apply in any given case. Part IV explores the rationale and normative principles underlying this theory, including the desirable clarity of per se rules and the need to restore strict scrutiny to a test that is sufficiently strict to provide adequate protection for core exercises of fundamental rights. Part IV also acknowledges three differences between the First and Second Amendments that suggest areas on the margins where the jurisprudence of the two Amendments might diverge. Part V expounds the three levels of scrutiny that apply to burdens on Second Amendment exercises on private property. Part VI explains how public forum doctrine offers two additional standards of review that apply on public property. Finally...