by Jordan E. Pratt

The nation has engaged in a spirited debate over the types of firearms and accessories that should be available for civilian ownership. Spurred primarily by the horrendous tragedy at Sandy Hook Elementary School, gun control advocates pushed for a renewed federal ban on certain semiautomatic firearms and ammunition feeding devices. These efforts ultimately failed, but several states—namely New York, Colorado, Maryland, Connecticut, and California—enacted restrictions of their own. Supporters of these legislative initiatives claimed that they were necessary to reduce the risk of mass killings, while opponents argued that they drew arbitrary distinctions and would serve as platforms for more restrictive future legislation.

This national debate did not occur in a constitutional vacuum but instead happened in the shadow of the Supreme Court’s modern Second Amendment decisions, District of Columbia v. Heller and McDonald v. City of Chicago. Of course, Heller and McDonald did not “clarify the entire field” of the newly revived right to keep and bear arms. They did, however, offer some guidance for evaluating gun-type restrictions: in accordance with a historical tradition of prohibiting the carry of “dangerous and unusual weapons,” the Second Amendment only protects weapons “in common use . . . for lawful purposes like self-defense.” As examples of firearms that would not qualify for constitutional protection, the Court listed “short-barreled shotguns” and “machineguns” such as “M–16 rifles.” These uncommon firearms stand in stark contrast to handguns, the “quintessential self-defense weapon,” which the District of Columbia and the city of Chicago could not prohibit. But aside from these brief illustrations and this narrow holding, the Court left the issue largely up to “future evaluation.”

Heller’s common use test raises a number of doctrinal puzzles. For example, the test fails to account for the fact that weapon ownership trends are often themselves the result of burdensome regulations, and the test also puts tension on Heller’s assertion that the Second Amendment protects modern weapons. Many weapons that are uncommon today might well have fallen into widespread use had they not been heavily regulated or banned shortly after their invention. And if the government can ban any weapon that has no tradition of widespread civilian ownership, then it can freeze the right to keep and bear arms to a moment in time—even while weapons technology progresses and renders common arms obsolete—because newly developed arms will always lack a tradition of widespread ownership. Heller did not explain how a test that focuses on ownership trends can make sense of the causal relationship between those trends and the laws that the test is used to evaluate. Nor did it explain how such a test can be applied to restrictions on new weapons technology. Unless the common use test evolves to incorporate some inquiry unrelated to a weapon’s numerical commonality, it will involve a degree of circular reasoning and will also eventually prove insufficient to honor Heller’s promise that the Second Amendment contemplates technological change.

Heller’s common use test left several other important questions unanswered. At a general level, how stringent is the common use test? Does the test set a uniform standard for the entire country, or does it account for local variations in the American gun culture? Should the determination of whether a gun is in common use be reviewed as a factual finding or instead as a legal conclusion? And finally, although uncommon firearms are apparently a Second Amendment exception, can the government completely prohibit their private possession in the home?

In thinking about possible answers to these questions, the First Amendment may provide a useful starting point. As a practical matter, the Supreme Court has already opened the door to First Amendment analogies. Heller repeatedly looked to the First Amendment as a guidepost, and so too did McDonald. That the Court would search for familiar doctrinal ground when marking the contours of a newly recognized right is certainly understandable, especially since First Amendment doctrine is comparatively so well-developed. But even apart from their pragmatic appeal, there is reason to think that First Amendment analogies are justified in principle. By placing individual self-defense at the epicenter of the Second Amendment and distancing the right from its insurrectionist roots, Heller “modernized” the Second Amendment to protect a value more consistent with the First Amendment’s veneration of democratic self-governance. Furthermore, the regulation of armed self-defense and free expression can trigger similar constitutional concerns, and to the degree that the First Amendment protects individual autonomy, the speech–arms analogy is particularly apt. “Self-preservation,” whatever else it may be, is certainly an exercise of autonomy. Finally, at a fundamental level, declaring that the Second Amendment guarantees an individual right while at the same time treating it much less seriously than the First would make little sense in the post-Heller and McDonald world. The Second Amendment “is now part of ordinary constitutional law,” and subjecting it to “an entirely different body of rules than the other Bill of Rights guarantees” would tarnish our important constitutional tradition of circumscribing the political will by rigorous judicial enforcement of liberty guarantees. While this sea change in Second Amendment law does not counsel the wholesale importation of substantive First Amendment doctrines, it does suggest that the First and Second Amendments share some doctrinally relevant traits.

Starting from the premise that appropriately tailored First Amendment analogies can offer general guidance when exploring the Second Amendment, this Article proposes that obscenity law, in particular, can offer important insights for mapping out the general constitutional boundaries of the modern debate over gun-type restrictions. So far, most courts and scholars have only briefly touched on the possible intersection between guns and obscenity. And while at least one scholar has argued that obscenity can provide an analogue for all firearms, this Article departs from that view by offering a more tailored alternative that treats only uncommon firearms as obscenity. This Article also adds to the literature on the intersection between guns and obscenity by providing detailed justification for the tailored analogy that it proposes and by exploring several novel ways in which the analogy can illuminate Heller’s common use standard.

At first glance, obscenity and uncommon firearms may seem unusual bedfellows, but Part I observes that they share significant, doctrinally relevant similarities that might justify treating them alike. Both are low-value categorical exceptions, and both involve line-drawing tests that focus on common usage. Additionally, both obscenity and uncommon firearms straddle the fences of longstanding cultural divides. Finally, unlike most of the First Amendment’s other exceptions, obscenity and uncommon firearms are material objects whose possession frequently does not involve an actual or intended harm to others.

Part II concludes that, due to these similarities, an obscenity analogy might trigger four developments in Second Amendment doctrine. First, the common use test should set a relatively high national bar for gun-type restrictions by incorporating a prong that asks whether a firearm lacks serious Second Amendment value, regardless of whether it is numerically common. This addition would solve the greatest drawback to the common use test by allowing the test to account both for future advances in weapons technology and for current weapons that would have become common had they not been restricted or banned soon after their development. Second, above this high national bar, the common use test should be locally tailored to allow room for different communities’ divergent gun cultures. This would be accomplished by asking whether a firearm is common in a given community, rather than the nation as a whole. Third, the fact-finder should determine whether a gun is in common use, subject to limiting instructions and general guidance from appellate courts. Fourth, even though uncommon firearms may be considered a Second Amendment exception, there may be a limited right to possess them in the home.

 

To read the full text please visit our Subscriptions page or one of the links below: