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Neither First nor Second Amendment Rights are Absolute

New Yorker

© The New Yorker 1989

When The New Yorker published this cartoon in 1989, it made me laugh.

I found the cartoon humorous at the time because 24 years ago hardly anyone HAD met a Second Amendment Lawyer, and because its humor played off of my own professional status as a First Amendment lawyer.

Time and events have vitiated the joke and turned the cartoon into an anachronism whose premise was completely lost on a young lawyer to whom I showed it recently.   Since 1989 the Second Amendment, which provides that “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed,” has come into its own.

A couple of decades ago Second Amendment lawyers were rare because there was little work for them to do.  As Jill Lepore wrote in The New Yorker last year, “In the two centuries following the adoption of the Bill of Rights, in 1791, no amendment received less attention in the courts than the Second, except the Third” (which prohibits the billeting of soldiers in private homes).   The Second Amendment was so seldom written about or litigated over that it became known as “the lost amendment.”   Moreover, the scant case law that was extant generally held that the amendment authorized state militias to bear arms but did not give individuals a right to own weapons.  See, e.g., Miller v. U.S., 307 U.S. 174 (1939).

The fascinating political, cultural and legal forces and events that elevated the Second Amendment’s star in the Constitutional firmament are beyond the scope of this commentary but are well chronicled in Ms. Lepore’s “Battleground America: One nation, under the gun,” (The New Yorker, April 23, 2012) and in a lengthy 2008 commentary by Reva B. Siegel of the Yale Law School (“Dead or Alive: Originalism as Popular Constitutionalism in Heller,” 122 Harvard L. Rev. 191).  Suffice it to say that by 2008, when the Supreme Court issued its opinion in District of Columbia v. Heller, the “lost amendment” had evolved (at least in the minds of five justices) into the source of a fundamental right of individual citizens to own firearms.

In other words, the last 25 years or so have seen Second Amendment rights emerge in much the same way that First Amendment rights developed during the period between World War I and 1931, during which decisions such as Gitlow v. New York, Whitney v. California and Near v. Minnesota declared that freedom of speech and press were fundamental rights protected by the due process clause of the Fourteenth Amendment.

These days we hear a lot of gun advocates saying, or at least implying, that because the Second Amendment says the right to bear arms “shall not be infringed,” no gun control measures of any kind are constitutional.  Indeed, this was essentially the position that Ted Cruz and 13 other U.S. Senators laid out in a March, 2013 letter to Senate Majority Leader Harry Reid in which they threated to filibuster any new restrictions, no matter how tepid, on “responsible, law-abiding gun owners.”

I don’t know whether this absolutist interpretation of the Second Amendment reflects ignorance, duplicity or both.  Perhaps it stems in part from a feeling on the part of gun supporters that they need to rely on hyperbole to protect a right that was formally and fully recognized only five years ago.  Whatever its basis, it is wrong, because no constitutional rights – including the First Amendment rights to which I have devoted much of my legal career – are completely unfettered.

The Second Amendment says the right to bear arms shall not be “infringed;” the First says the freedoms of speech and press cannot be “abridged.”  The two terms are interchangeable and indistinguishable in this context, but whether they were intended to mean exactly the same thing or not, the courts have not interpreted either to mean that the rights in question are absolute.  Indeed, Justice Scalia acknowledged as much in his opinion for the Court in District of Columbia v. Heller, the 2008 case that clarified the scope of the Second Amendment.   He wrote:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not [citation omitted].  Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Limitations on the freedom of speech most often take the form of “time, place and manner” restrictions, such as local ordinances that restrict the locations, hours and decibels at which sound trucks may operate, or that prohibit picketers from entering courthouses or blocking public sidewalks.  Such restrictions accommodate public convenience and promote social order by regulating traffic flow, preserving property interests, conserving the environment and protecting the administration of justice.  So long as they are content-neutral and reasonable, regulations of this kind do not offend the First Amendment.   The right to “peaceably assemble” does not mean that local governments cannot require demonstrators to obtain parade permits.  The “free exercise” clause does not immunize churches against reasonable ordinances limiting noise generated by singing, shouting and preaching.

Perhaps I am missing something, but I see no principled distinction between reasonable “time, place and manner” restrictions on First Amendment rights and laws or ordinances that bar firearms from schools, parks and college campuses.   Our elected representatives could decide to allow rock bands to play in residential neighborhoods at any hour of the day or night, and they could decide to allow elementary school teachers to keep handguns in their desks, but if they do either of those things they should not be heard to say that their decision is justified, much less mandated, by the First Amendment or by the Second.


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