by David B. Kopel

First Amendment law has been well developed by the Supreme Court in many decisions over the past eight decades; this rich body of case law has provided analogies and tools that have been used for analysis of many other parts of the Constitution. The First Amendment is an especially helpful tool for Second Amendment analysis.

To begin with, the First and Second Amendments both protect fundamental aspects of individual autonomy against government suppression.  In contrast, much of the rest of the Bill of Rights concerns controls on government procedures, such as when a person can be arrested, how criminal trials are to be conducted, and what punishments may be imposed.

As the Supreme Court has affirmed, the First and Second Amendments safeguard inherent human rights, which predate government itself.  Like the right to assemble, the right to keep and bear arms was not invented in 1789 or in 1689. The right is “found wherever civilization exists.”  While in America the right is guaranteed by the Constitution, the right is not “in any manner dependent upon that instrument for its existence.”  Such rights are, according to the Declaration of Independence, far more ancient than government itself; the very reason that governments are created is to protect such rights.  What the Second Amendment protects is older than the Twelve Tables, older than Confucius, older than recorded history. The right is as old as Natural Law, which is to say that it is among the first of the “Laws of Nature and of Nature’s God.”  As described in Part I of this article, the Supreme Court has strongly indicated that First Amendment tools should be employed to help resolve Second Amendment issues. Before District of Columbia v. Heller,10 several Supreme Court cases suggested that the First and Second Amendments should be interpreted in the same manner. Heller and McDonald v. City of Chicago11 applied this approach, using First Amendment analogies to resolve many Second Amendment questions.

Part II of this Article details how influential lower court decisions have followed—or misapplied—the Supreme Court’s teaching. Of course, precise First Amendment rules cannot necessarily be applied verbatim to the Second Amendment. Part III outlines some general First Amendment principles that are also valid for the Second Amendment. Finally, Part IV looks at how several First Amendment doctrines can be used in Second Amendment cases, showing that some, but not all, First Amendment doctrines can readily fit into Second Amendment jurisprudence.

 

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