This blog has always been about the uneasy intersection between the First Amendment and lawyer speech regulation. I write and speak about First Amendment stuff all the time; it’s integral to my work. So I find it easy to look askance at those who try and trample on First Amendment rights. But it’s weird to me that people who would do the same – fight hard for the First Amendment – have such a hard time treating the right to bear arms in the same way.
It shouldn’t be this way: the Supreme Court has held that the Second Amendment encapsulates an individual right, just as surely as the First Amendment does. And while any individual might treasure one right more so than another, that’s not how the law operates. So perhaps some direct analogies from how speech regulation works will help in the understanding of how gun regulation can work – and how it can’t.
Let’s start here: free speech and gun rights aren’t absolute. You can’t say whatever you want, wherever you want, however you want. And you can’t carry or use any weapon you want, wherever you want, however you want. 1
There are a handful of categorical exceptions to the First Amendment – think defamation, child pornography, true threats, etc. When thinking about the Second Amendment, these exceptions can be analogized to the one big categorical exception to the Second Amendment: the right of the state to prohibit “dangerous and unusual” weapons. 2
So let’s say the First Amendment-excepted category of obscenity is analogous to dangerous and unusual weapons. Both concepts – “obscenity” and “dangerous and unusual” – are a little vague, but at least they allow for fencing in the grounds for debate. This is useful, when talking about the Second Amendment, due to the sheer amount of misinformation and emotion-based arguing that goes on. It disciplines the discussion. Instead of bemoaning “weapons designed specifically to kill people with brutal speed and efficiency” (as the New York Times does in its front-page editorial calling for gun control), we have to ask the more specific and pointed question of whether a particular category of weapon is sufficiently “dangerous and unusual” to qualify for a ban. Not doing so – adopting the rhetorical stance of the NYT – is, to go back to my analogy, the equivalent of arguing that some form of erotica should be banned as obscene because it offends Aunt Gertrude’s bluenose sensibilities. So doing is subjective and sloppy.
We’ve also got to do something the NYT leaves out in its emotion-based argument: acknowledge that self-defense is a legitimate and long-standing right underpinning the Second Amendment. And if you want a weapon for self-defense, you want one that is “designed specifically to kill people with brutal speed and efficiency.”
It’s easy for the NYT – and a lot of its readers who live comfortable existences and who are unfamiliar with/afraid of guns – to pooh-pooh the importance or usefulness of the right of self-defense. But back to my First Amendment analogy: the NYT would be the first to defend the idea that the First Amendment protects all sorts of expression that the vast majority of people would find little value in. And just as it’s not a winning First Amendment argument to contend that the vile behavior of the Westboro Baptist Church should be banned because it’s ugly and harmful, it’s not a winning Second Amendment argument to contend that guns are ineffective or unnecessary for self-defense. 3
There’s still plenty of room for debate about what types of weapons should qualify as “dangerous and unusual.” The quality – and usefulness – of the gun control debate would improve markedly if it moved there.
Besides the small number of categories of expression that are excepted from First Amendment protection, there are a number of other categories where expression can be regulated. The primary ones include:
- Content-based regulations – technically, the state can regulate the content of speech, but such regulations have to survive strict scrutiny. As a practical matter, this means that such regulations almost always fail unless the content of the speech falls into one of the limited categories of exception to the first amendment.
- Non-Public Forums – the government has far more leeway to regulate speech in non-public forums, like government offices and courtrooms.
- Occupational speech – a somewhat ill-defined area that I have written about at some length. The government can, to a degree still undetermined by the courts, regulate certain types of speech by licensed professionals.
- “Time, place, and manner” restrictions – These regulations don’t favor a particular type of content, but restrict all expression in a particular way. Such regulations need only meet intermediate scrutiny – which still means the government has the burden to show that a regulation serves an important government goal, is narrowly tailored to achieve that goal, and preserves ample other means of communication. Lots of regulation falls into this category: sign size restrictions, noise ordinances, etc.
- Commercial Speech – my favorite topic! Advertisements can be regulated, subject to the same intermediate scrutiny standard used for time, place and manner restrictions.
So what’s our analogy the Second Amendment? How would we evaluate proposed gun control measures that fall short of an outright ban on a class of weapons?
I think – and I realize this area is still being developed, as lower federal courts have taken a wide variety of approaches to the standard of review for gun restrictions – that such laws would be analogous to content-based regulation or commercial speech, depending on the severity of regulation.
Regulations that act as de facto bans, or otherwise substantially interfere with the exercise of Second Amendment rights, would be subject to strict scrutiny. Other, less intrusive regulations, would be subject to intermediate scrutiny.
A lower standard of review is justified for commercial speech based on the hardiness and objectivity of advertising compared with other forms of speech. A similar type of argument could be made that the lesser forms of gun regulation fall into a category where the government should have a little more room to regulate given the inherent dangerousness of firearms.
Thus, advertising regulation = gun regulation (short of bans on a whole category of weapons).
If the government wants to regulate advertising, it’s got the burden of showing that the regulation meets a three-prong test: an important government interest, regulation that directly advances that interest, and regulation that is no more expansive than necessary to advance that interest. Would-be advertising regulators rarely have a problem with the first prong – there are lots of important government interests. Yet they fail this test all the time, typically in one of two ways:
- They pass laws without any empirical evidence that the law will actually do anything (failing the “direct advancement” prong), or
- They pass laws that are wildly overbroad – “solving” the problem by infringing on all sorts of protected expression (thus failing the “no more expansive than necessary” prong).
Applying this test to gun regulation nicely frames the debate, by making us consider the efficacy and scope of any proposed regulation, rather than arguing based on emotion or magical thinking.Thus, applying the commercial speech analogy, the questions “why should anyone be allowed to have an assault rifle” or “why should magazines holding more than 10 rounds be allowed?” must be reframed as “could we directly advance an important government interest in a narrow way by restricting assault rifles or large magazines?” We could then look at the data and determine whether such regulations would be effective and not too broad. 4
There are probably lots of “commonsense gun restrictions” that could meet this test. I have to believe that the interests of gun control advocates would be better met by engaging the argument at this level – the level of sober constitutional scrutiny – rather than continuing the hysterics exemplified by the New York Times editorial. But for that to happen, people have to recognize that Second Amendment rights are important, too – we don’t get to pick and choose the rights we want to support.
- Important point: this principle is not, as a matter of law, remotely controversial. If you disagree with it, if you think that the law has no legitimate limitations on the rights of free speech or firearms whatsoever, you might as well stop reading now. Also: when talking about free speech and weapons rights, the first thing to remember is this: government action. The first and second amendments protect our rights with respect to the government. They have no bearing on whether Starbucks can prohibit patrons from open-carrying guns, or eject the over-caffeinated patron who launches into a polemic while waiting their next triple soy latte. ↩
- There are other categorical exceptions to the Second Amendment – possession by felons, concealed carry, etc. – that aren’t important here. ↩
- That argument is also empirically wrong – ask anyone who lives in a dangerous neighborhood, way out in the sticks, or who had to manage in New Orleans in the days after Hurricane Katrina – but my point is that the right of self-defense-by-firearm is settled law, so it’s meaningless to argue over it. ↩
- And for what it’s worth, back in October the Second Circuit did just that, finding that New York and Connecticut’s bans on large magazines and certain types of assault rifles meet intermediate scrutiny and are constitutional. ↩