Turning to the First to understand the Second
The First Amendment right to freedom of speech and the Second Amendment right to keep and bear arms are usually related only by their proximity in the Bill of Rights. But the connection actually runs much deeper. Courts are using standards from First Amendment law and applying them in Second Amendment cases.
The 5th U.S. Circuit Court of Appeals just did this in its Oct. 25 decision in National Rifle Association v. Bureau of Alcohol, Tobacco, Firearms, and Explosives.
In this case, the 5th Circuit considered the constitutionality of federal laws prohibiting federal firearms licensees from selling handguns to minors. The National Rifle Association and some 18-20-year-olds challenged the law as violating the Second Amendment.
The 5th Circuit used a two-step process in evaluating the Second Amendment claim. First, the appeals court reasoned that it must determine whether the Second Amendment protects the conduct at issue. Second, if the conduct is protected by the Second Amendment, the court must decide which standard of review to apply to the law. The three common standards of review in First Amendment law are strict scrutiny, intermediate scrutiny and rational basis. Strict scrutiny requires the government to have a compelling government interest, intermediate scrutiny requires a substantial interest and rational basis requires only a legitimate interest.
The appeals court found support for this two-step process from First Amendment free-speech law, in which courts often first ask whether certain speech falls into an unprotected category of speech, such as fighting words, true threats, incitement to imminent lawless action, obscenity, child pornography or defamation.
“Similar to the first step of our Second Amendment analysis, the first step in analyzing a First Amendment challenge is to determine whether the conduct (i.e. speech) in question is protected,” the 5th Circuit wrote. “In harmony with well-developed principles that have guided our interpretation of the First Amendment, we believe that a law impinging upon the Second Amendment right must be reviewed under a properly tuned level of scrutiny.”
It is not surprising that courts would use First Amendment analogues in deciding Second Amendment cases. The U.S. Supreme Court has developed an intricate — if less than totally coherent — body of First Amendment free-speech law for decades upon decades. But the Supreme Court has only recently begun developing its Second Amendment jurisprudence.
In District of Columbia v. Heller (2008), the Court ruled that the right to keep and bear arms was an individual right rather than a collective right of a “well-regulated militia.” Then, in McDonald v. City of Chicago (2010), the Court ruled this individual right to keep and bear arms was so fundamental that it also applied against regulations by state and local governments. Recall that the Supreme Court first ruled the First Amendment right to free speech applied to state and local governments as well as federal way back in 1925 in Gitlow v. New York.
The Supreme Court referred to First Amendment cases repeatedly in making its Second Amendment decision in Heller.
Lower courts hearing Second Amendment cases now must determine which standard of review to apply to various laws restricting the sale, possession or use of firearms. The 5th Circuit determined there was “longstanding, historical tradition” of limiting who possessed firearms and found the federal laws did not violate the Second Amendment.
Other courts could reach different conclusions in different Second Amendment cases. But many courts will refer to First Amendment free-speech law and its use of different standards of review.
In other words, judges will use the First to understand the Second.