Treating the Pen and the Sword as Constitutional Equals: How and Why the Supreme Court Should Apply Its First Amendment Expertise to the Great Second Amendment Debate

By Browne, David G. | William and Mary Law Review, April 2003 | Go to article overview

Treating the Pen and the Sword as Constitutional Equals: How and Why the Supreme Court Should Apply Its First Amendment Expertise to the Great Second Amendment Debate


Browne, David G., William and Mary Law Review


INTRODUCTION

The First Amendment has received probably more treatment from both the courts and the legal academy than any other amendment. The Second Amendment, by contrast, has received virtually no consideration in the courts and scant attention from legal scholars up until roughly the last fifteen years. (1) "[W]hat was true of the First Amendment as of 1904 remains true of the Second Amendment even now." (2) Professor Sanford Levinson suggests that legal academics' failure to address Second Amendment issues stems from a legitimate fear of the legal conclusions that might be reached if the amendment were given greater, and intellectually honest, attention by courts and legal scholars. (3) Perhaps it is time to give the Second Amendment a dose of First Amendment analysis.

Although a few modern scholars have drawn parallels between the First and Second Amendments (4) along with at least one during the nineteenth century, (5) practical applications of these parallels have yet to be described in any comprehensive detail. Given that the United States now has more than 20,000 firearms laws (including federal, state, and local laws), (6) such a practical application seems long overdue. Much of the existing scholarship that addresses the meaning of the Second Amendment examines the Amendment from a single perspective, as though in a vacuum. Some focus on textual analysis, (7) others on "original meaning" (the Framers' understanding and historical context); (8) few, however, view the Amendment through analyses that are more applicable to, and derived from, modern times and current legal standards. As one scholar points out, "Second Amendment scholars feel most comfortable discussing history. They claim that the Amendment's history is known and that it freezes the Amendment's meaning. To the best of my knowledge, no First Amendment scholar believes that the First Amendment's history is dispositive of its meaning." (9) Nor should the Second Amendment's history be dispositive of, or limit, its meaning today.

Setting aside the many possible explanations for the disparate treatment of the First and Second Amendments, it is clear that technological advances since their ratification in 1791 have resulted in a great deal of development and evolution of the law with respect to freedom of speech and freedom of the press, particularly in the twentieth century, while the right to keep and bear arms has languished as a nebulous concept, despite our current age of automatic firearms and aircraft carriers. (10) Although the Supreme Court and the legal commentators have written about and debated the implications of technology with respect to the rights of free speech and press, they have all but ignored as a matter of constitutional law the technological developments since 1791 in the field of firearms. (11)

The Court and the legal academy can and should apply much of what has been learned and established in the realms of free speech and free press to the Second Amendment. Although the First and Second Amendments are different in both construction and purpose, the well-established standards and tests applicable to the regulation of speech and press are valuable tools with which to understand the practical aspects of firearms regulation vis-a-vis the Second Amendment.

This Note will assume that the Second Amendment, as a "right of the people," is an individual right, and argue from that perspective that standards of review analogous to those applied to the First Amendment (which, in contrast, is a restraint on Congress) can and should be applied to cases involving the right to keep and bear arms. Applying the so-called "standard model," (12) this Note will explore some practical limits on the government's power to regulate firearms under the Second Amendment by using basic and widely understood First Amendment standards and examples to illuminate the unconstitutionality of recent legislation regulating firearms, including the National Firearms Act of 1934 (13) and the federal "assault weapons" ban.

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Treating the Pen and the Sword as Constitutional Equals: How and Why the Supreme Court Should Apply Its First Amendment Expertise to the Great Second Amendment Debate
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