Treating the pen and the sword as constitutional equals: how and why the Supreme Court should apply its First Amendment expertise to the great Second Amendment debate.

Author:Browne, David G.


The First Amendment has received probably more treatment from both the courts and the legal academy than any other amendment. The Second Amendment, by contrast, has received virtually no consideration in the courts and scant attention from legal scholars up until roughly the last fifteen years. (1) "[W]hat was true of the First Amendment as of 1904 remains true of the Second Amendment even now." (2) Professor Sanford Levinson suggests that legal academics' failure to address Second Amendment issues stems from a legitimate fear of the legal conclusions that might be reached if the amendment were given greater, and intellectually honest, attention by courts and legal scholars. (3) Perhaps it is time to give the Second Amendment a dose of First Amendment analysis.

Although a few modern scholars have drawn parallels between the First and Second Amendments (4) along with at least one during the nineteenth century, (5) practical applications of these parallels have yet to be described in any comprehensive detail. Given that the United States now has more than 20,000 firearms laws (including federal, state, and local laws), (6) such a practical application seems long overdue. Much of the existing scholarship that addresses the meaning of the Second Amendment examines the Amendment from a single perspective, as though in a vacuum. Some focus on textual analysis, (7) others on "original meaning" (the Framers' understanding and historical context); (8) few, however, view the Amendment through analyses that are more applicable to, and derived from, modern times and current legal standards. As one scholar points out, "Second Amendment scholars feel most comfortable discussing history. They claim that the Amendment's history is known and that it freezes the Amendment's meaning. To the best of my knowledge, no First Amendment scholar believes that the First Amendment's history is dispositive of its meaning." (9) Nor should the Second Amendment's history be dispositive of, or limit, its meaning today.

Setting aside the many possible explanations for the disparate treatment of the First and Second Amendments, it is clear that technological advances since their ratification in 1791 have resulted in a great deal of development and evolution of the law with respect to freedom of speech and freedom of the press, particularly in the twentieth century, while the right to keep and bear arms has languished as a nebulous concept, despite our current age of automatic firearms and aircraft carriers. (10) Although the Supreme Court and the legal commentators have written about and debated the implications of technology with respect to the rights of free speech and press, they have all but ignored as a matter of constitutional law the technological developments since 1791 in the field of firearms. (11)

The Court and the legal academy can and should apply much of what has been learned and established in the realms of free speech and free press to the Second Amendment. Although the First and Second Amendments are different in both construction and purpose, the well-established standards and tests applicable to the regulation of speech and press are valuable tools with which to understand the practical aspects of firearms regulation vis-a-vis the Second Amendment.

This Note will assume that the Second Amendment, as a "right of the people," is an individual right, and argue from that perspective that standards of review analogous to those applied to the First Amendment (which, in contrast, is a restraint on Congress) can and should be applied to cases involving the right to keep and bear arms. Applying the so-called "standard model," (12) this Note will explore some practical limits on the government's power to regulate firearms under the Second Amendment by using basic and widely understood First Amendment standards and examples to illuminate the unconstitutionality of recent legislation regulating firearms, including the National Firearms Act of 1934 (13) and the federal "assault weapons" ban. (14)


    1. Construction of the Amendments: Rights of "The People"

      The First and Second Amendments differ in both their construction and in the nature of the rights that they secure; it seems that the text of the Second supports a more expansive reading than that given to the First. (15) Despite (or perhaps because of) these differences, legal scholars and philosophers have recently started to wonder

      what justifies giving the Second Amendment a narrow construction at the same time one gives an expansive interpretation to the First? ... [The] text cannot help, since both amendments are equally susceptible to either narrow or broad constructions. Reliance on precedent also cannot solve the problem since the narrow interpretation of the Second Amendment is not so settled by a series of Supreme Court decisions that it could not be revisited. (16) One plausible approach is to apply analogous First Amendment standards to Second Amendment issues. This approach would clearly be neither perfect nor universally applicable, but there are some broad principles that would serve as valuable tools in this developing area of the law.

      To justify the application of First Amendment standards to the (very different) Second Amendment, one must begin by noting the fact that the First Amendment's guarantees of free speech and free press, as well as the Establishment Clause, incorporated via the Fourteenth Amendment, (17) are constructed as a restraint on federal and state governments. The Second Amendment, by contrast, is a "right of the people," one that secures a specific and individual liberty. (18) This difference in construction is significant because, as the Second Circuit has noted, "[t]he Establishment Clause, unlike the Fourth Amendment, contains no limiting language. Indeed, the basic structure of the Establishment Clause, which imposes a restriction on Congress, differs markedly from that of the Fourth Amendment, which confers a right on the people." (19)

      This construction is also significant because, as Justice Rehnquist recently noted:

      "[T]he people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." (20) If the phrase "the people" refers to individuals (as it does when used in the Fourth Amendment) universally, such that individuals' rights are implicated, then courts and lawmakers should, at the very least, approach restrictions and infringements on the right to keep and bear arms with the same caution they show towards such infringements on the right of free speech and the freedom of the press. To do otherwise would be both unconstitutional and intellectually dishonest.

      When deciding Second Amendment cases, at minimum courts should adopt the varying levels of scrutiny applied in First Amendment cases in order to afford appropriate deference to the individual's right to keep and bear arms. Given the fact that such a fine-tuned construction is applied to a restraint on Congress in the First Amendment context, surely the Second Amendment which provides for a more intimate right of "the people" should be offered the same protection.

    2. Legal Scholarship

      Legal scholars have arrived at similar conclusions. In dismissing assertions that the Second Amendment refers to a "collective right," Sanford Levinson notes that "[s]uch an argument founders ... upon examination of the text of the federal Bill of Rights itself and the usage there of the term 'the people' in the First, Fourth, Ninth, and Tenth Amendments." (21) Another scholar compares the right guaranteed by the Second Amendment to that of the people to choose members of Congress. (22) "The significance of guaranteeing the right to keep and bear arms to 'the people' becomes clear when one reads the Second Amendment in context with the entire document." (23)

      Leading First Amendment scholars also have recognized the incongruity of the treatment of the two rights by courts thus far. Professor William Van Alstyne succinctly summarizes the disparate treatment:

      The Second Amendment of course does not assume that the right of the people to keep and bear arms will not be abused.... To put the matter most simply, the governing principle here, in the Second Amendment, is not different from the same principle governing the First Amendment's provisions on freedom of speech and the freedom of the press. A person may be held to account for an abuse of that freedom (for example, by being held liable for using it to publish false claims with respect to the nutritional value of the food offered for public sale and consumption). Yet, no one today contends that just because the publication of such false statements is a danger one might in some measure reduce if, say, licenses also could be required as a condition of owning a newspaper or even a mimeograph machine, that therefore licensing can be made a requirement of owning either a newspaper or a mimeograph machine. (24) It seems clear that the Second Amendment, because it is a fundamental right of "the people," ought to be consistent with and analogous to established First Amendment jurisprudence in the twenty-first century. As the most celebrated and perhaps the most extensively developed collection of constitutional rights, the First Amendment offers numerous, well-developed standards that can be applied analogously to firearms regulation. In effect, the First Amendment jurisprudence can serve as a compass to the Court through the too long uncharted sea of firearms law.

    3. The Importance of an Armed Populace in a Free Republic--The Fundamental Purpose of...

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