Scholarship

The First Amendment and Online Gun-Related Content

The First Amendment to the U.S. Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Following the 2011 attempted assassination of Congresswoman Gabrielle Giffords, there was much talk of numbers. The shooter used a Glock 23 handgun to fire off 33 rounds in 15 to 20 seconds, before pausing to reload. The public and legislative focus of some post-shooting discussions shifted to banning magazines that could hold large amounts of ammunition. Some gun owners responded to this talk by posting YouTube videos of themselves firing the same number of rounds in the same timeframe as the Giffords shooting, using smaller-capacity magazines. Their point was that banning large magazines wouldn’t have the desired impact of completely preventing future shooting attacks. Even before any gun control legislation might have been passed, it was being undercut by gun owners exercising what they view as their First Amendment right to free speech.

Teaching the Second Amendment at Duke Law

This semester, I’m co-teaching with Joseph Blocher a seminar called Second Amendment: History, Theory, and Practice. A copy of our syllabus is available here. We just started the course yesterday and the discussion was deep, lively, and wide-ranging. I expect each week the fantastic students will bring this same level of insight and engagement to our conversations together.

I also wanted to use the opportunity of a new semester to re-up an earlier blog feature we did on Teaching Firearms Law. It includes the perspectives of scholars approaching the issue from different angles; each post explains how they teach the topic and what issues and themes they highlight. Check it out!

Mini-Symposium: Teaching Firearms Law

AALS Hot Topic Panel on the Second Amendment and the Future of Heller

(Photo Credit: Nora V. Demleitner)

This past Saturday, the Center was fortunate to organize a hot topic panel discussion at the Association of American Law Schools Annual Conference in Washington, D.C. We used NYSRPA as a jumping off point to talk about open issues in Second Amendment law and scholarship. The main themes the speakers discussed were how Second Amendment rights can come into conflict with other rights, interests, or values, and how framing and rhetoric from both gun-rights advocates and gun-regulation proponents shapes constitutional law and discourse.

The Year Ahead in Firearms Law and the Second Amendment

Before looking forward to the big cases, issues, and expectations for the year ahead in firearms law, we’d like to highlight the Center for Firearms Law’s achievements this past year. After launching in February, we hosted a roundtable discussion with historians of English and Irish history, held the first ever Firearms Law Works-in-Progress Workshop, and organized a symposium on Guns Rights and Regulation Outside the Home. We sponsored panels with distinguished scholars on diverse topics like the anti-tyranny view of the Second Amendment, the Supreme Court and the Second Amendment, extreme risk (aka “red flag”) laws, guns and domestic violence, and more. We launched this blog and have had guest posts from a dozen other experts so far. During the Court’s new Term, we started a weekly SCOTUS Gun Watch to track all the cases about firearms law or the Second Amendment pending before the Court. In the last month, we covered the oral arguments in New York State Rifle and Pistol Association v. City of New York on this blog, in numerous media outlets, and in a terrific and engaging discussion with Nina Totenberg in Washington, D.C. This year was, in short, a remarkable one for the Center. We expect the next year to be even better.

2020 also promises to be a watershed year for firearms law. We expect a decision in the Supreme Court’s first major Second Amendment case in a decade, and it would not at all be surprising for the Court to take another case (especially if it determines that NYSRPA is moot). Several major issues are raised in pending cert petitions, such as the constitutionality of “good cause” laws for public carry permits & bans on assault weapons and high-capacity magazines and how and whether prohibited persons can raise as-applied challenges to the federal laws indefinitely barring their firearm possession. Some or all of those issues are likely to be resolved or at least taken up this year. And we may get the Supreme Court’s stamp of approval or sign of rejection for the ubiquitous two-part framework and concomitant embrace or distancing from the alternative text, history, and tradition approach.

Outside the Supreme Court, other issues will likely continue to gain traction and attention in the next year. The spread of extreme risk (red flag) laws across the country will probably continue. Civil lawsuits arising from urban gun violence, diversion of illegal guns, and mass shootings are scheduled to proceed to discovery. The demand among young people and others for greater gun regulations shows no signs of stopping. And the proliferation of a backlash movement among gun rights supporters to create Second Amendment sanctuary cities, counties, and towns will likely proceed apace. These latter popular movements in fact echo one of the major substantive debates that I expect to occupy a lot of scholarly, public, and judicial attention in the next year: the conflict/intersection between the Second Amendment and competing rights, interests, and values.

In this next year, we’ll be here covering all these issues and continuing to bring together scholars of diverse backgrounds and perspectives to understand, assess, and explain them.

The “Text, History, and Tradition” Alternative

I’ve written previously about the surprising agreement among courts of appeals interpreting and applying the Second Amendment. They all agree, for instance, that the standard two-part framework is the best way to analyze Second Amendment challenges. Under that framework, the first question is whether the challenged law burdens conduct protected by the Constitution; if it does, the second question is whether the law passes some form of heightened scrutiny. But there’s an alternative test that has been strongly urged by gun-rights advocates and some dissenting judges. That test looks solely to “text, history, and tradition” to assess compliance with the Second Amendment. This debate peaked through the mootness fog during this week’s NYSRPA arguments.

Why Regulate Guns?

[This post by Reva Siegel and Joseph Blocher was originally published on the Take Care blog on 12/2 and and is cross-posted there.]

The Supreme Court is about to hear argument in its first major Second Amendment case in nearly a decade. The regulation in New York Rifle & Pistol Association v. New York (NYSRPA), which restricted transport of guns outside the home, has been repealed and replaced with a state law that seems to render the case moot. But if the Justices do not declare the case moot, they are expected to expand protections for the right recognized in District of Columbia v. Heller in 2008. Gun advocates are urging the Court to expand Heller beyond the home and to reject the current approach to Second Amendment law in favor of more stringent doctrinal alternatives. If the Court goes down that road and mandates closer scrutiny of governments’ justifications for regulating guns, the ruling could call into question the constitutionality of mainstream laws restricting high capacity magazines or requiring permits for carrying loaded weapons in public places like Walmart.

We write to focus attention on a taken-for-granted feature of the current framework that escalates in importance as the Court applies a more stringent standard of review: the state’s interest in regulating guns. Courts generally recognize that the government has a compelling interest in preventing wrongful shootings. But mechanical recitation of this public-safety interest has blocked consideration of the different communities and the different constitutional values that public safety regulation of guns serves. If the Court mandates increased scrutiny of gun laws, demanding evidence that a law is narrowly tailored to achieve the state’s interests—without properly accounting for what those interests really are—the Court is likely to create a framework that over-protects gun rights and invalidates gun legislation that the public has legitimate interests in enacting. Only by considering the different communities protected and different values vindicated by gun laws can judges determine whether, in a given case, the government has sufficient reasons for enacting a particular restriction on gun use, and what kinds of evidence are appropriate to support the government’s case.

NYSRPA arrives at the Court after years of claims by gun rights advocates that lower courts are “nullifying” the Second Amendment or treating it as a “second class right.” There are empirical reasons to doubt this claim, but in this post we raise a different reason it misdescribes the law. In short: case law narrowly accounts for the states’ important interests in regulating and so is likely to skew analysis if the Court demands closer scrutiny and narrow tailoring. Far from relegating the Second Amendment to a “second class right,” this narrow account of state interests has put the government at a disadvantage it does not necessarily face in other areas of constitutional law.

The state interest question is an important one for the Court to address in NYSRPA. Young Americans who have mobilized against gun violence under the banner of March for Our Lives (MFOL) filed an amicus brief that advances the state interest analysis, by making visible different communities that gun laws protect and important constitutional values that gun laws vindicate. The brief “presents the voices and stories of young people from Parkland, Florida, to South Central Los Angeles who have been affected directly and indirectly by gun violence,” and paints a graphic picture of the direct and indirect costs of gun violence on young people, in an effort to “acquaint the Court with the pain and trauma that gun violence has inflicted on them, and the hope that their ability to advocate for change through the political process affords them.”

The MFOL brief recounts the stories of young Americans who have survived gun violence and turned to the political process in an effort to manage the experience. They seek to persuade others of the importance of enacting gun safety laws that would protect their families, their friends, and themselves from similar violence in the future, and that would make possible safe places to assemble and to learn. The stories in the MFOL brief show that gun laws protect many communities and promote many goods—the laws surely serve state interests beyond the prevention of specific shootings.

Guns in schools do much more than threaten individual students with injury. One recent headline reported “356 victims” over the past ten years—counting only those killed or injured in 180 school shootings during that period. But even if one focuses only on students present in those schools, the true number of students victimized by gun violence is many hundreds times higher than that. Consider the children who hid, or fled, or were marched out of school with their hands in the air, or who lost friends, or (as powerfully described in the MFOL brief) watched their friends die, or wake up with nightmares. Anyone present in a school where a shooting takes place runs a risk of suffering lifelong trauma. By one count, approaching a quarter of a million school children have experienced school violence since Columbine. Through graphic accounts by survivors, the MFOL brief makes plain that shootings reverberate through society ravaging the lives of many more people than those who are shot. Shootings tear through urban communities. They haunt families, and transform the experience of neighborhoods and schools.

The managerial language of public safety does not do justice to the reasons individuals and groups seek to enact gun safety laws.  The “young people coming of age in an era of school shootings and rampant urban gun violence” entering politics to enact gun laws are exercising constitutionally protected freedoms of many kinds as they made plain in naming their movement “March For Our Lives.” When government legislates in response, it is doing more than preventing particular deaths. It is practicing responsive local democracy that simultaneously affirms the lives and voices of a new generation of citizens, affirming the long-standing role of states as laboratories of democracy, as the MFOL brief explains, “to devise solutions to social problems that suit local needs and values.”

But there is more. Guns and gun violence impact people’s ability to enjoy the full range of their constitutionally guaranteed liberty, including the right to speak, to learn, and to peaceably assemble. For that matter, the government may have a compelling interest in legislating so as to improve public confidence in institutions like legislatures and schools—to demonstrate that these institutions can and will respond to the expressed needs of their citizenry, and promote the interest that all share in inhabiting public institutions and spaces in security and confidence and freedom from fear.

Even in First Amendment cases, the Court has recognized that the government has a legitimate interest in defending values and interests that go beyond remedying or preventing particular instances of wrongful conduct. In Roberts v. Jaycees, for example, the Court upheld a law prohibiting discrimination in public accommodations against a freedom of association challenge, noting that the law was designed to protect citizens “from a number of serious social and personal harms,” that discrimination in public accommodations “deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life,” and that the state’s interest is not limited to “assuring equal access limited to the provision of purely tangible goods and services.”  The Jaycees case is important as it recognizes that public accommodation laws promote equal opportunity for individuals and communities by affirming equality values as well as by fairly distributing access to goods and services. The discussion of state interests in the Jaycees case illuminates the state interests in enacting gun laws as well. It suggests that states enacting gun laws can vindicate individual as well as societal interests. The Court’s analysis in Jaycees further suggests that the government can do more than promote its citizens’ bare interest in survival or freedom from physical harm. Government also has valid interests in protecting forms of public participation in community life, as well as cultivating the confidence of citizens in the responsiveness, effectiveness, integrity, and safety of its institutions.

Consider also a more recent state interest analysis: Chief Justice Roberts’ majority opinion in Williams-Yulee v. Florida Bar, which rejected a First Amendment challenge to a Florida law prohibiting judicial candidates from soliciting campaign funds. The Chief Justice’s majority opinion upheld the challenged law despite applying strict scrutiny. In doing so, the Chief Justice found that the Florida law was narrowly tailored. Not only did the law further the prevention of quid pro quo corruption, but it advanced the “State’s compelling interest in preserving public confidence in the integrity of the judiciary.” Can public confidence in the safety of schools be any less compelling?

This account of the state interests that legislation may serve has important implications for the constitutionality of gun laws going forward. If the government interest in enacting gun laws is understood as an interest in public safety, and public safety is understood as an interest in deterring wrongful shootings, measurable by deaths and injuries that a law can be shown to prevent, then the constitutionality of a gun regulation will depend on an empirical showing. And while there is plenty of good empirical evidence of this kind, framing the means-ends analysis in this framework can impose a heavy, and sometimes, insurmountable, burden on the government. The difficulties may be particularly acute for novel laws designed to address novel problems, where evidence (empirical comparisons of jurisdictions with and without such laws, for example) may not always be available, especially given the well-known difficulties in funding research on gun violence. That, in turn, could lead a skeptical judge to strike down a law on the tailoring prong, even while recognizing the compelling state interest in preventing wrongful deaths.

Recognizing a broader interest means that the constitutionality of a gun law need not pivot exclusively on how many shootings it can be shown to prevent. Instead a court may allow evidence that a law contributes to public confidence and a sense of safety in other ways that might not be subject to ready empirical evaluation. The government might still bear the burden, as it always does under heightened scrutiny, but it would not be required to carry that burden using empirical studies. Again, this is how constitutional adjudication sometimes works. In abortion cases, for example, courts do not require empirical evidence of how a particular restriction furthers state interests like the respect for potential life. Or, as the Chief Justice put it in Williams-Yulee, “The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling.”

Too often, the gun debate is presented as if there are constitutional rights on one side (that of gun owners) and only nebulous policy “interests” on the other. But that frame misses precisely what is hard about the gun debate, and which our alternative conception of the state interest can potentially help show: Both sides feel urgently that they must do all they can to keep themselves and their children safe from gun violence. Both sides can appeal to constitutional values. As Justice Stevens recognized in McDonald, “in evaluating an asserted right to be free from particular gun-control regulations, liberty is on both sides of the equation. Guns may be useful for self-defense, as well as for hunting and sport, but they also have a unique potential to facilitate death and destruction and thereby to destabilize ordered liberty. Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence.”

Gun owners regularly point to reassurance they feel in owning or carrying guns, even knowing that only a small fraction of them will ever use a gun in self-defense. As the stories in the MFOL brief powerfully demonstrate, advocates of regulation seek the same piece of mind through democratic politics. The Constitution is on both sides.

The Anti-Carolene Court and Gun Politics

Nicholas Stephanopoulos has recently posted an article describing how the Roberts Court is fast becoming the “Anti-Carolene Court.”   The 1938 case United States v. Carolene Products Co. is famous, of course, for its footnote four, where Justice Stone articulates a theory of judicial review keyed to the need for judicial officers to intervene when there’s a failure of the political process.  The justices must act when groups – typically “discrete and insular” minorities  –  are  otherwise unable to assemble democratic coalitions to advance their political goals.  They must also act where there’s a risk of partisan hijacking of the political process itself to effect partisan entrenchment.  According to Stephanopoulos, the Roberts Court in recent years has “[f]lipped Carolene Products on its head” intervening in political disputes when Carolene Products would counsel deference, deferring when it would demand action, and all in a way that, consciously or unconsciously, aligns with the partisan priorities of conservative elites.

Unbannable Arms?

When it comes to the “Arms” protected by the Second Amendment, the conceptual space is typically divided into two categories. Some weapons, like those that are “dangerous and unusual,” can be banned without raising any constitutional problems. For those that are not dangerous and unusual, the government has to satisfy some requisite level of scrutiny. But—and I hate to do this again, having just made a conceptually similar argument about the Two Part test—there also seems to be a third category: Weapons that cannot be banned without categorically violating the Second Amendment.