Guns and Speech Technologies: How the Right to Bear Arms Affects Copyright Regulations of Speech Technologies
Lee, Edward, The William and Mary Bill of Rights Journal
This Article examines the possible effect the Supreme Court's landmark Second Amendment ruling in District of Columbia v. Heller will have on future cases brought under the Free Press Clause.1 Based on the text and history of the Constitution, the connection between the two Clauses is undeniable, as the Heller Court itself repeatedly suggested. Only two provisions in the entire Constitution protect individual rights to a technology: the Second Amendment's right to bear "arms" and the Free Press Clause's right to the freedom of the "press," meaning the printing press. Both rights were viewed, moreover, as pre-existing, natural rights to the Framing generation and were separately called during the Framing the "palladium of liberty" and essential to "the security of freedom in a state." The development of both concepts traces back to the abuses of the Crown in disarming the populace and restricting the printing press in England. During the seventeenth century, the people in England were deprived of both technologies-in the case of the printing press, by the copyright holders of the period known as the Stationers' Company, which conducted warrantless searches to seize unauthorized presses with the backing of the Crown. The Bill of Rights was enacted to stop these abuses in the new Republic. Both clauses developed in direct reaction to the perceived threat of government restrictions on the respective technologies. Given this historical connection, the analysis of the Second Amendment in Heller may provide a useful point of reference for the Court in future cases interpreting the Free Press Clause. Just as Heller held that banning handguns for the purpose of gun control violates the Second Amendment's core protection of the right to possess arms for self-defense, banning speech technologies for the purpose of copyright control violates the Free Press Clause's core protection of speech technologies for self-expression.
In District of Columbia v. Heller, the Supreme Court defined, for the first time in 217 years of the Second Amendment's existence, an individual right to keep and bear arms for self-defense purposes.2 This landmark decision settled, once and for all, the lingering question of whether the Second Amendment recognizes a general right to bear arms for all individuals, or instead limits such right only to the context of a militia. In a 5-4 decision, the Court opted for the broader interpretation and struck down D.C s gun control law that barred individuals from owning handguns in D.C.3
The Heller decision will likely have ramifications that are far-reaching.4 A day after the Heller decision, the National Rifle Association (NRA) filed five different lawsuits against gun control laws in San Francisco, Chicago, and three Chicago suburbs, to extend the Court's ruling to the states through the doctrine of incorporation and to test the constitutionality of other gun control laws.5 Only a month later, Dick Heller, the same plaintiff in the Second Amendment lawsuit, filed a constitutional challenge to D.C.'s newly revised gun control law that banned semiautomatic handguns capable of shooting more than twelve shots without manual reloading.6 The Heller Court itself recognized that future litigation may arise to test permissible exceptions to the Second Amendment right, which the Court concluded "is not unlimited."7 As the Court emphasized,
[N]othing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.8
That admonition did nothing to deter subsequent Second Amendment challenges to laws forbidding gun ownership by those convicted of felonies9 or misdemeanor crimes of domestic violence.10 Although virtually all of these challenges have been rejected thus far, the stream of cases with similar challenges continues unabated. …