Jurisprudence

The Supreme Court May Elevate the Second Amendment Above the First

Two white men wearing camouflage vests and carrying big guns walk down a street at night
Oath Keepers at a protest in Ferguson, Missouri, marking the first anniversary of the shooting of Michael Brown on Aug. 10, 2015. Scott Olson/Getty Images

During oral arguments earlier this month in the most important Second Amendment case to reach the Supreme Court in years, Chief Justice John Roberts and Justices Samuel Alito and Amy Coney Barrett seemed especially interested in where lines around restricting guns in public spaces should be drawn. Should the Second Amendment guarantee individuals the freedom to carry concealed weapons in a courthouse or in a stadium? How much weight should the court give to the density of the community in which the firearms are to be carried? Does the amount of crime favor or disfavor gun owners?

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Critically, and missed in the wider discourse around the case, Paul Clement, the attorney for New York State Rifle & Pistol Association, opened the door to resolving the case by looking at the court’s past First Amendment jurisprudence and applying it to gun rights. Contrary to what Clement argued, though, framing the guns case through a First Amendment lens reveals that the court has drawn clear and workable lines that argue for commonsense regulations. If the Supreme Court were to hold gun owners to the same standards it holds people seeking to take part in protected speech and assembly, New York’s current restrictions on concealed carry would actually survive in some modified form. If that doesn’t happen, then the court’s conservatives would be elevating the status of the Second Amendment above First Amendment protections for the first time ever.

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First, it’s important to recognize that the court allows quite a number of restrictions around the First Amendment. In past cases, free speech and assembly advocates have argued that the Constitution guaranteed the right to speak in government buildings, airports, military bases, and privately owned shopping centers. The Supreme Court, however, rejected these arguments, and instead concluded that the Constitution only guarantees speech in “traditional public forums” such as streets, sidewalks, and parks. Under these precedents, such speech is restricted to places that have “been held in trust for the use of the public and … have been used for purposes of assembly, communicating thoughts between citizens, and discussing public issues.” Governments may allow individuals to use other public spaces for free speech, but the Constitution does not require them to do so. To the extent that the Supreme Court must determine where the Second Amendment applies outside of the home, why should the Second Amendment’s protection extend to more places than the First Amendment’s?

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Because the public uses public spaces for specific purposes, they may be regulated to ensure that expression does not interfere with their normal use. Rallies interfere with picnics and family gatherings. Parades and picketing block traffic and access to homes and businesses. To the extent that they both involve the freedom to exercise individual rights in public spaces, the public forum doctrine of First Amendment jurisprudence suggests that states may restrict Second Amendment rights when their exercise interferes with the public use and enjoyment of these spaces.

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Do firearms in parks and on streets interfere with the normal use and enjoyment of these spaces? Firearms clearly present a risk to public safety. Individuals may be injured and even killed when firearms are misused, improperly handled, or even when they are used properly. Even when a gunshot strikes the intended target, others may still be injured because the bullet may pass through the target and injure someone else or because the presence of the gun and gunfire cause a panic. While speech may annoy, offend, or even harass those around the speaker, firearms injure and even kill those nearby. Members of the public may genuinely feel unsafe in parks or on the roads when firearms are allowed in those locations, more so than when they are confronted by a noisy protester.

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Critically, in NYSRPA, the plaintiffs are not demanding the right to merely carry the firearm; they are demanding the right to use the firearm for self-defense. Thus, the fundamental question is not whether the presence of firearms threatens public safety but whether their use threatens public safety. The answer should be obvious, and the lessons of First Amendment jurisprudence should apply.

When it has come to the First Amendment, as long as restrictions on individual liberty are reasonably related to preserving the public’s enjoyment of a given forum, judges may not declare those laws unconstitutional because they disagree with the law, would have weighed the costs and benefits differently, or prefer a different approach. The Supreme Court has deferred to lawmakers when speakers were denied the opportunity to post messages on utility poles for safety and aesthetics, to use sound trucks that would disturb people on the streets and indoors, or to picket in residential neighborhoods because the picketing could interfere with traffic and deny individuals a feeling of well-being, tranquility, and privacy in their homes. If elected representatives decide that the risks of innocent bystanders being injured or killed, the weapon being turned against the owner, or law enforcement being unable to distinguish between the good guy with the gun and the bad guy are unacceptable, the First Amendment teaches that courts have no authority to second-guess those judgments because they disagree with them. This should also be true if lawmakers restrict guns to protect the freedom to speak and assemble in the public forum.

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However, this does not mean that lawmakers are free to do as they please in restricting firearms in public. If the Second Amendment is going to be treated like the First Amendment, government restrictions on the carrying of firearms must be tailored to prevent discrimination and arbitrary decision-making. While local governments may require speakers to obtain permits to hold events in public forums, those permitting decisions must be based upon “narrow, objective, and definite standards” and “related to the proper regulation of public places.” In other words, permits may not be denied for reasons unrelated to the enjoyment of the public forum. The clearest rule under these circumstances is that the government’s decisions cannot be based upon the content of the speaker’s message.

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While there is no direct corollary to these content-based regulations that can be applied to restrictions of gun rights, if the First Amendment prohibits political authorities from regulating speech because they disagree with the message, the Second Amendment could be interpreted as prohibiting the regulation of firearms because lawmakers disapprove of firearms or those that seek to carry them. While lawmakers under such an analysis may consider how and when to regulate firearms due to the risk they pose, First Amendment law suggests that those regulations may not be based upon the merit of carrying firearms for self-defense.

Even when restrictions upon firearms are not discriminatory, but are for the legitimate purpose of protecting public safety, such laws must still be narrow, objective, and based upon clear standards. When it comes to speech, this requirement ensures that the permitting authority cannot use the permit as a means of censoring constitutionally protected speech. According to the court, “the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official—is unconstitutional.” The same should be true for firearms, and, arguably, this is where New York’s law fails. The requirement that applicants must show “proper cause” may be insufficiently clear and objective, allowing officials to exercise an unconstitutional amount of discretion.

If the court adopts this approach, it will follow a clearly marked path that will force New York to reconsider its standards for restricting guns in public, but allow it to still maintain some such standards. If the public forum doctrine is good enough for those seeking to exercise their First Amendment rights, it should be good enough for those who wish to exercise their Second Amendment rights as well.

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