Speaking Truth to Firepower: How the First Amendment Destabilizes the Second
Magarian, Gregory P., Texas Law Review
When the Supreme Court in District of Columbia v. Heller declared that the Second Amendment protects an individual right to keep and bear arms, it set atop the federal judicial agenda the critical task of elaborating the right's scope, limits, and content. Following Heller, commentators routinely draw upon the First Amendment's protections for expressive freedom to support their proposals for Second Amendment doctrine. In this Article, Professor Magarian advocates a very different role for the First Amendment in explicating the Second, and he contends that our best understanding of First Amendment theory and doctrine severely diminishes the Second Amendment's legal potency. Professor Magarian first criticizes efforts to draw direct analogies between the First and Second Amendments, because the two amendments and their objects of protection diverge along critical descriptive, normative, and functional lines. He then contends that longstanding debates about whether constitutional speech protections primarily serve collectivist or individualist purposes present a useful model for interpreting the Second Amendment. The language of the Second Amendment's preamble, which Heller all but erased from the text, compels a collectivist reading of the Second Amendment. The individual right to keep and bear arms, contrary to the Heller Court's fixation on individual self-defense, must serve some collective interest. Many gun rights advocates have long urged that the Second Amendment serves a collective interest in deterring-and, if necessary, violently deposing-a tyrannical federal government. That theory of Second Amendment insurrectionism marks another point of contact with the First Amendment, because constitutional expressive freedom serves the conceptually similar function of protecting public debate in order to enable dynamic political change. Professor Magarian contends, however, that we should prefer debate to insurrection as a means of political change and that, in fact, the historical disparity in our legal culture's attention to the First and Second Amendments reflects a long-settled choice of debate over insurrection. Moreover, embracing Second Amendment insurrectionism would endanger our commitment to protecting dissident political speech under the First Amendment. Professor Magarian concludes that our insights about the First Amendment leave little space for the Second Amendment to develop as a meaningful constraint on government action.
Since the Second Amendment's emergence into academic prominence in the 1970s, and especially since the Supreme Court's landmark 2008 decision in District of Columbia v. Heller1 announced that the Amendment protects an individual right to keep and bear arms,2 courts and commentators have compared and sometimes conflated the Second Amendment right with the First Amendment's protections for free expression. This trend has intensified since the Court's 2010 decision in McDonald v. City of Chicago,3 in which the Court treated the Second Amendment like the First by extending its scope to encompass state as well as federal encroachments on the right to keep and bear arms.4 Courts now must elaborate the scope, limits, and substantive content of the Second Amendment individual right. The First Amendment's extensive judicial development as a guarantor of expressive freedom makes it an attractive starting point for fleshing out the legal concept of an individual right to keep and bear arms. Numerous commentators, encouraged by Heller, have moved far beyond that starting point, invoking specific elements of First Amendment doctrine as templates for parallel proposals in Second Amendment doctrine. By their accounts, what we know about the First Amendment both strengthens the legal case for a strong regime of Second Amendment rights and tells us a great deal about what that regime should do.
Prior scholarship has made no thorough, critical inquiry into how our long experience with the First Amendment should inform our new engagement with the Second Amendment. …