• Fri. Dec 4th, 2020

This year, protests have coursed throughout the nation, and unfortunately, as Chicago Mayor Lori Lightfoot has candidly acknowledged, “we’ve also seen . . . people who have embedded themselves in these seemingly peaceful protests and come for a fight.” As a result of such civic disorder, more people in jurisdictions such as Illinois and Minnesota, sites of widespread looting and even arson, have wanted immediate access to firearms. But some jurisdictions, including these, have failed to process licenses to purchase or carry firearms in a timely manner.  

Such delays violate the right of the people to keep and bear arms. In District of Columbia v. Heller, the Supreme Court expressly held that the right to possess a gun at home was of the essence of the Second Amendment, and the right was extended to the states by McDonald v. Chicago. Yet Illinois, for instance, now imposes lengthy delays to obtain even the licenses necessary to purchase a gun for home or business use. The statute permits as much as a 30-day delay, and in June it took an average of 51 days to get the necessary FOID card. A colleague of mine still has not gotten one after 170 days. A firearm delayed is self-defense denied. That is particularly problematic at a time of increased violence and looting. A gun—even one that is never fired—may make the difference between a burned-down store and a continuing source of livelihood.

An analogy to the First Amendment demonstrates why the delays in gun access are unconstitutional. While the First Amendment permits states to require licenses for demonstrations (because of the need to prevent disruption to other activities), such licenses cannot be so unreasonably delayed as to effectively undermine the right of free speech. Moreover, the First Amendment suggests the need for licensing exceptions for demonstrations in response to breaking news. In any event, judges have permitted short delays of only a few days before licenses for demonstrations must be issued.

Similarly, licensing is permitted under the Second Amendment to make sure that guns do not get in the hands of felons and the mentally ill—categories of people the Supreme Court has stated do not have the right to guns. But delays in issuing gun licenses during unrest would render the Second Amendment right as ineffective as unnecessary delays in protest licensing would the First. Moreover, substantial delays are unneeded to determine whether someone is a felon or has been adjudicated as mentally ill, as the federal instant gun check program shows. These delays are also far more substantial than any “cooling off” period that would help prevent crimes of vengeance or passion, even assuming that such a reason for delay was compatible with the Second Amendment’s provision of a right to ready self-defense.

In a recent article, I offer new evidence about why the analogy between the First and Second Amendments is particularly appropriate. And surprisingly, that evidence, while never previously discussed in the context of the Second Amendment, also provides new support for the proposition that the Second Amendment articulates an individual right whose purpose was to protect personal safety, not just a collective right to be exercised through the militia. And it comes from none other than James Madison, father of the Constitution and drafter of the Bill of Rights. Talk about evidence hiding in plain sight!

Interpreting the Second Amendment by analogy to the First has the advantage of importing a well-reticulated body of First Amendment principles to help guide a Second Amendment law still in its infancy.

The newly discovered support comes in his explication of the natural-rights basis of the Bills of Rights provisions, published shortly after their enactment. There he compares various components of the Bill of Rights to “rights of property” and he does so in Lockean terms that focus on the power of the individual versus the rest of the world:

[Property] in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

[A] man has a property in his opinions and the free communication of them.

He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.

He has a property very dear to him in the safety and liberty of his person . . .

This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.

Madison here describes rights that track those protected in the Bill of Rights. He understands them as rights of the individual that each may directly exercise. I have italicized the language most relevant to the Second Amendment because the connection has never been noted before. It seems clear that this is indeed a reference to the Second Amendment because Madison’s discussion follows directly after the individual rights at issue in the First Amendment. This passage also suggests Madison sees the Second Amendment as a right related to self-defense. Thus, it cannot be dismissed as simply a right to avoid government tyranny that can be effective only when exercised collectively. It is an individual right that protects personal safety.

Moreover, this passage provides strong justification for drawing analogies between the First and Second Amendments. Madison’s comment shows that both are rights of the individual on par with what was considered another sacred individual right at the time—the right of property. Although these rights may be able to be regulated for the common good, they cannot be abridged or infringed. Judicial review prevents the political branches from infringing them under the guise of promoting the public welfare.                

Interpreting the Second Amendment by analogy to the First has the specific advantage of importing a well-reticulated body of First Amendment principles to help guide a Second Amendment law still in its infancy. But even more importantly, reference to the First Amendment also encourages neutral treatment of the Second Amendment, because judges as a class are likely more sympathetic to the natural right of expression than to the natural right of self-defense. Judges are uniformly lawyers who make their living by words: the natural right to their opinions is a source of their livelihood. While some may own guns, there is no occupational reason to expect that they will have such a supportive disposition toward the natural right of self-defense.

Indeed, as Justice Antonin Scalia noted in another context: “[W]e federal judges live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives.” Thus, considering analogies to the First Amendment helps the judiciary appreciate the full weight of what protection a natural right deserves in a context with which they are more familiar and more apt to sympathize. Neutral principles of adjudication should be applied to similar rights to make sure that some rights are not disfavored because they are less popular with the judiciary.

Finally, the recent unrest reminds us that the First and Second Amendments interact in yet another way. One of the reasons people feel the urge to acquire the means to defend themselves now is the violence that may emerge from even protests authorized by the First Amendment, to say nothing of unlawful assemblies and riots. Thus, a vigorous Second Amendment complements a vigorous First Amendment because protecting the natural right of speech, which includes protest, may make the exercise of the natural right of self-protection even more necessary.  

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