The First Two Amendments

[Nelson Lund]

I agree with Eugene's legal point. In addition, however, the general 
proposition that "guns are more dangerous than speech" seems 
questionable when one considers the mass destruction that probably would 
not have occurred but for the speech of people like Marx, Lenin, and Hitler.

Nelson Lund
George Mason


Volokh, Eugene wrote:
>
>             I was not trying here to suggest that the Second Amendment 
> should be treated like the First Amendment.  I was arguing that the 
> proposal to adopt tests that seem familiar from (among other places) 
> the First Amendment -- strict scrutiny, intermediate scrutiny, and the 
> like -- is unsound because they don't work well in the First Amendment 
> area, either.  And in fact the one (post-Heller) article that I have 
> that discusses First Amendment analogies in detail, 
> http://www.law.ucla.edu/volokh/2am.pdf, points to substantial 
> differences between the two rights as well as some similarities.
>
>  
>
>             But I should mention that the free speech / right to bear 
> arms analogy long predates both Justice Scalia and me, especially when 
> it comes to regulations.   See, e.g., Respublica v. Oswald, 1 U.S. (1 
> Dall.) 319, 330 n.* (Pa. 1788) ("The right of publication, like every 
> other right, has its natural and necessary boundary; for, though the 
> law allows a man . . . the possession of a weapon, yet it does not 
> authorize him to plunge a dagger in the breast of an inoffensive 
> neighbour" (relating statement by William Lewis, then a Pennsylvania 
> legislator and later a federal judge)); H.P. Nugent, An Account of the 
> Proceedings had in the Superior Court of the Territory of Orleans, 
> Against Thierry & Nugent for Libels and Contempt of Court 43 
> (Philadelphia 1810) ("[A]s the liberty of keeping arms is not the 
> liberty of killing or maiming whom we please, so is not the liberty of 
> the press, the liberty of publishing libels" (relating statements by 
> Judge François Xavier Martin, then a territorial judge and later Chief 
> Justice of the Louisiana Supreme Court)); Commonwealth v. Blanding, 20 
> Mass. 304, 314 (1825) ("The liberty of the press was to be 
> unrestrained, but he who used it was to be responsible in case of its 
> abuse; like the right to keep fire arms, which does not protect him 
> who uses them for annoyance or destruction.").  And the analogy wasn't 
> inhibited by the suggestion that the right to keep and bear arms is 
> different from the rights of free speech and press because of the word 
> "well-regulated" (which in case applies to the "militia," not the 
> "right," and which doesn't appear in most of the contemporaneous state 
> constitutional right to keep and bear arms provisions).  Rather, the 
> analogy stemmed from the Framing-era notion that /all/ substantive 
> rights were subject to some degree of reasonable regulation that falls 
> short of prohibition.  The question, of course, is how that should be 
> implemented as a legal rule.
>
>  
>
>             Eugene
>
>  
>
> *From:* Mark Stein [mailto:chmyankel at live.com]
> *Sent:* Wednesday, March 03, 2010 4:31 AM
> *To:* Volokh, Eugene; conlawprof at lists.ucla.edu
> *Subject:* RE: Correction RE: "Standard[s] of review" for rights 
> enumerated by the Bill of Rights
>
>  
>
>
> The First Amendment analogy itself provides unfortunate guidance.  
> This analogy should be rejected because the word "regulate" appears in 
> the text of the Second Amendment itself, because guns are more 
> dangerous than speech, and for a host of other reasons.  I would say 
> the First Amendment analogy is ridiculous if Justice Scalia had not 
> already suggested it in Heller, no doubt following one of Eugene's 
> articles.
>
> Mark
>
> > From: VOLOKH at law.ucla.edu
> > To: conlawprof at lists.ucla.edu
> > Date: Tue, 2 Mar 2010 22:20:26 -0800
> > Subject: Correction RE: "Standard[s] of review" for rights enumerated 
> by the Bill of Rights
> >
> > Sorry -- I meant to say "there is *not one* case in which a 
> content-based speech restriction has been pronounced valid under 
> strict scrutiny by a majority of the U.S. Supreme Court." Of course 
> some such restrictions have been upheld on exceptions-to-protection 
> grounds (see, e.g., Ferber, Miller, etc.), and some facially 
> content-based restrictions have been evaluated under intermediate 
> scrutiny for various not very persuasive grounds (see, e.g., Renton).
> >
> > Eugene
> >
> > > -----Original Message-----
> > > From: Volokh, Eugene
> > > Sent: Tuesday, March 02, 2010 8:47 PM
> > > To: conlawprof at lists.ucla.edu
> > > Subject: "Standard[s] of review" for rights enumerated by the Bill 
> of Rights
> > >
> > > I see the appeal of urging the Court to adopt a "standard of 
> review" for
> > > the Second Amendment, and to do so quickly. Ilya is certainly right 
> when he says
> > > that one of the Court's most important functions is setting 
> guidance for lower
> > > courts.
> > >
> > > The trouble is that the Court's track record with "standards of 
> review" as
> > > conventionally understood (strict scrutiny, intermediate scrutiny, 
> rational basis,
> > > and so on) -- at least for rights enumerated by the Bill of Rights 
> -- has been very
> > > poor. Consider:
> > >
> > > 1. Strict scrutiny under the First Amendment: This is perhaps the 
> classic
> > > example that people point to as a "standard of review." But wait: 
> Strict scrutiny
> > > under the Free Speech Clause and under the Free Exercise Clause (in the
> > > Sherbert/Yoder era) were completely different. Strict scrutiny 
> under the Free
> > > Exercise Clause was mystifying -- usually very feeble, except in 
> the rare situation
> > > where it wasn't. Strict scrutiny under the Free Speech Clause (and 
> Free Press
> > > Clause) was "strict in theory, fatal in fact" (to borrow Gunther's 
> term about strict
> > > scrutiny in Equal Protection Clause cases, as of 1972). After 
> Citizens United
> > > reversed Austin, there is *not one* case in which a content-based 
> speech
> > > restriction has been pronounced valid by a majority of the U.S. Supreme
> > > Supreme Court. And as I've argued before (see
> > > http://www.law.ucla.edu/volokh/scrutiny.htm), the reason free speech
> > > protections are so forceful is precisely that the Court has 
> actually been applying
> > > a rule of per se invalidation, setting aside the exceptions to 
> protection, and not
> > > strict scrutiny as the Court has actually described it. The real 
> action in Free
> > > Speech Clause cases involving content-based restrictions (and the 
> government
> > > as sovereign) ends up being in the definition of what is and what 
> isn't content-
> > > based, and in the exceptions to protection, which don't actually 
> involve what we
> > > think of as "standard[s] of review." (Some collateral First 
> Amendment rules,
> > > such as the freedom of expressive association and the right of 
> public access to
> > > trials, have used yet a third level of strict scrutiny, neither 
> fatal nor feeble; but
> > > again, it's hardly clear exactly what it is, and I don't think the 
> ostensible
> > > definition of this strict scrutiny has been doing much work there.)
> > >
> > > 2. The Establishment Clause: The ostensible test here isn't one of the
> > > familiar "standards of review," but the infamous Lemon test, which 
> I think
> > > should actually be seen as a test-generating set of guideposts 
> rather than an
> > > actual test. To the extent there's any predictability in the cases, 
> it comes not
> > > from standards of review but from comparing and contrasting with the
> > > precedents, and with pulling out principles from the precedents 
> (such as the no
> > > endorsement principle, the no religious decisions principle, and so 
> on).
> > >
> > > 3. The Fourth Amendment: The test here is ostensibly
> > > "reasonableness," but that has hardly created much guidance for 
> lower courts.
> > > What has guided lower courts are the per se rules that the Court 
> has developed
> > > in various cases, such as the probable cause / warrant requirement 
> for home
> > > searches (with the usual exceptions), the probable cause / no 
> warrant needed
> > > rule for car searches, and so on. It's hard to articulate any 
> helpful unitary Fourth
> > > Amendment standard of review, at least under the current caselaw.
> > >
> > > 4. The Takings Clause: We have here a per se rule of compensation for
> > > physical takings (with some categorical exceptions), plus a 
> "balancing" test for
> > > regulatory takings under Penn Central; the latter, I think, is 
> widely acknowledged
> > > not to be a success, both by those who want more protection against 
> regulatory
> > > takings and by those who think there should be no Takings Clause 
> problem at all
> > > with things short of physical invasions.
> > >
> > > 5. The rest of the Fifth Amendment, plus the Sixth, Seventh, and Eighth
> > > Amendments: Here we have mostly per se rules, with categorical 
> exceptions;
> > > no-one thinks, for instance, that the government may deny a jury 
> trial when it's
> > > "necessary to serve a compelling government interest" -- for 
> instance, if
> > > Congress decided to mandate bench trials for 
> sexual-preference-based hate
> > > crimes, on the theory that juries wouldn't convict in enough such 
> cases, the law
> > > would be unconstitutional regardless of the strength of the 
> interest or the link
> > > between the law and the interest. But there are categorical 
> exceptions, largely
> > > driven by history, for petty offenses, for prosecutions by military 
> commissions,
> > > and so on.
> > >
> > > 6. Even as to unenumerated rights, such as the abortion right, strict
> > > scrutiny was never a terribly helpful guide; the rule was basically 
> per se
> > > invalidation with occasional flashes of a substantial burden 
> threshold, plus
> > > categorical limitations based on the mother's age and the fetus's 
> age. And then
> > > of course it was replaced with the "undue burden" test, which is 
> basically a rule
> > > that substantial burdens are per se invalid and 
> less-than-substantial ones are
> > > pretty much per se valid. I think such "substantial burden" tests 
> are the one
> > > promising thing in this whole field (see generally
> > > http://www.law.ucla.edu/volokh/2am.pdf for application of this to 
> the Second
> > > Amendment), but they have their own well-known problems, and 
> they've hardly
> > > set the standard-of-review world on fire.
> > >
> > > So whatever value strict and intermediate scrutiny have had in the 
> Equal
> > > Protection Clause context -- and I'm not sure they have been that 
> helpful even
> > > there -- they have not been successes as to the rights enumerated 
> by the Bill of
> > > Rights: They have either not been adopted in the first place, or 
> they have been
> > > mouthed as ostensible tests but have not been followed in any sort of
> > > predictable or useful way. So it seems to me that setting up an 
> ostensible
> > > "standard of review," if by that we mean intermediate scrutiny or 
> strict scrutiny
> > > (in any of their incarnations), is unlikely to be helpful for the 
> Second
> > > Amendment. The likeliest solution, and probably the best one, would 
> be to
> > > follow the Free Speech Clause pattern, and decide cases over time, 
> coming up
> > > with categorical protections and categorical exceptions, with the 
> gaps being
> > > filled by lower courts by comparing and contrasting with the 
> precedents.
> > >
> > > Eugene
> > _______________________________________________
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