The First Two Amendments

Humbach, Prof. John A. jhumbach at
Wed Mar 3 11:19:40 PST 2010

These are some great quotes, Eugene. But I'm wondering if they (particularly the one from Blanding) do not simply reflect the fact that, until the 1920s, it was pretty well accepted that the First Amendment's protection of free speech and press was essentially nothing more than a prohibition on prior restraints. See Patterson v. Colorado, 205 U.S. 454, 462 (1907) ("the main purpose of [the First Amendment] is '"'to prevent . . . previous restraints upon publications . . .' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare"), which quotes Blanding with approval

Of course, one could apply much the same analysis to the Second Amendment, too: It prohibits prior restraints on gun violence, but allows it to be punished after it occurs.

So then, the analogous question becomes, when can the government act to head off a mere risk of gun violence (as you say, "some grave danger")? The First Amendment cases suggest three choices:

1) Brandenburg (the law can ban only that prospective gun violence which is both intended and likely to occur).

2) O'Brien (a gun ban is okay if it "furthers a substantial governmental interest" and the incidental burden on gun possession is "no greater than essential" to further that interest-though not necessarily the "least restrictive alternative")

3) Renton/Ginsberg rational basis test (bans are okay if the evidence of possible adverse effects "is reasonably believed" by the legislature "to be relevant to the problem" or it is "not irrational for the legislature to find" such to be the case).

I should say that the rational basis analysis used in Renton and Ginsberg kind of irritates me in the First Amendment context, but these cases and their progeny (e.g., Pap's) are still out there, unoverruled, to be imported to the Second Amendment context as soon as the current 5-4 flips the other way.

BTW, I think your "scrutiny of scrutiny" in Implementing the Right is very illuminating, Nonetheless, my money is on Renton/Ginsberg. As long as the "scientific" evidence on the causes of gun violence is in serious dispute, the Court is not going to override the choice of legislatures to chose one set of studies over another.


John A. Humbach, Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
Tel. 914-422-4239  -- jhumbach at
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From: conlawprof-bounces at [mailto:conlawprof-bounces at] On Behalf Of Volokh, Eugene
Sent: Wednesday, March 03, 2010 12:39 PM
To: 'conlawprof at'
Subject: The First Two Amendments

            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,, 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.

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