Attorney Paul Clement, in a recent argument before the U.S. Supreme Court, opened the door to resolving a pending gun case by looking at the court’s past First Amendment jurisprudence and applying it to the Second Amendment, reported Slate. Contrary to what Clement argued, though, framing the guns case through a First Amendment lens reveals that the court has drawn clear and workable lines that argue for commonsense regulations. If the Supreme Court were to hold gun owners to the same standards it holds people seeking to take part in protected speech and assembly, New York’s current restrictions on concealed carry would actually survive in some modified form. If that doesn’t happen, then the court’s conservatives would be elevating the status of the Second Amendment above First Amendment protections for the first time ever.
First, it’s important to recognize that the court allows quite a number of restrictions around the First Amendment. In past cases, free speech and assembly advocates have argued that the Constitution guaranteed the right to speak in government buildings, airports, military bases, and privately owned shopping centers. The Supreme Court, however, rejected these arguments, and instead concluded that the Constitution only guarantees speech in “traditional public forums” such as streets, sidewalks, and parks. Under these precedents, such speech is restricted to places that have “been held in trust for the use of the public and … have been used for purposes of assembly, communicating thoughts between citizens, and discussing public issues.” Governments may allow individuals to use other public spaces for free speech, but the Constitution does not require them to do so. To the extent that the Supreme Court must determine where the Second Amendment applies outside of the home, why should the Second Amendment’s protection extend to more places than the First Amendment’s?
Because the public uses public spaces for specific
purposes, they may be regulated to ensure that expression does not interfere
with their normal use. Rallies interfere with picnics and family gatherings.
Parades and picketing block traffic and access to homes and businesses. To the
extent that they both involve the freedom to exercise individual rights in
public spaces, the public forum doctrine of First Amendment jurisprudence
suggests that states may restrict Second Amendment rights when their exercise
interferes with the public use and enjoyment of these spaces.
Do firearms in parks and on streets interfere with
the normal use and enjoyment of these spaces? Firearms clearly present a risk
to public safety. Individuals may be injured and even killed when firearms are
misused, improperly handled, or even when they are used properly. Even when a
gunshot strikes the intended target, others may still be injured because the
bullet may pass through the target and injure someone else or because the
presence of the gun and gunfire cause a panic. While speech may annoy, offend,
or even harass those around the speaker, firearms injure and even kill those
nearby. Members of the public may genuinely feel unsafe in parks or on the
roads when firearms are allowed in those locations, more so than when they are
confronted by a noisy protester.
Critically, in NYSRPA, the plaintiffs are not
demanding the right to merely carry the firearm; they are demanding the right
to use the firearm for self-defense. Thus, the fundamental question is not
whether the presence of firearms threatens public safety but whether their use
threatens public safety. The answer should be obvious, and the lessons of First
Amendment jurisprudence should apply.
When it has come to the First Amendment, as long as
restrictions on individual liberty are reasonably related to preserving the
public’s enjoyment of a given forum, judges may not declare those laws
unconstitutional because they disagree with the law, would have weighed the
costs and benefits differently, or prefer a different approach. The Supreme
Court has deferred to lawmakers when speakers were denied the opportunity to
post messages on utility poles for safety and aesthetics, to use sound trucks
that would disturb people on the streets and indoors, or to picket in
residential neighborhoods because the picketing could interfere with traffic
and deny individuals a feeling of well-being, tranquility, and privacy in their
homes. If elected representatives decide that the risks of innocent bystanders
being injured or killed, the weapon being turned against the owner, or law
enforcement being unable to distinguish between the good guy with the gun and
the bad guy are unacceptable, the First Amendment teaches that courts have no
authority to second-guess those judgments because they disagree with
them. This should also be true if lawmakers restrict guns to protect the
freedom to speak and assemble in the public forum.
However, this does not mean that lawmakers are free
to do as they please in restricting firearms in public. If the Second Amendment
is going to be treated like the First Amendment, government restrictions on the
carrying of firearms must be tailored to prevent discrimination and arbitrary
decision-making. While local governments may require speakers to obtain permits
to hold events in public forums, those permitting decisions must be based upon
“narrow, objective, and definite standards” and “related to the proper regulation
of public places.” In other words, permits may not be denied for reasons
unrelated to the enjoyment of the public forum. The clearest rule under these
circumstances is that the government’s decisions cannot be based upon the
content of the speaker’s message.
While there is no direct corollary to these
content-based regulations that can be applied to restrictions of gun rights, if
the First Amendment prohibits political authorities from regulating speech
because they disagree with the message, the Second Amendment could be
interpreted as prohibiting the regulation of firearms because lawmakers
disapprove of firearms or those that seek to carry them. While lawmakers under
such an analysis may consider how and when to regulate firearms due to the risk
they pose, First Amendment law suggests that those regulations may not be based
upon the merit of carrying firearms for self-defense.
Even when restrictions upon firearms are not
discriminatory, but are for the legitimate purpose of protecting public safety,
such laws must still be narrow, objective, and based upon clear standards. When
it comes to speech, this requirement ensures that the permitting authority
cannot use the permit as a means of censoring constitutionally protected
speech. According to the court, “the peaceful enjoyment of freedoms which the
Constitution guarantees contingent upon the uncontrolled will of an official—as
by requiring a permit or license which may be granted or withheld in the
discretion of such official—is unconstitutional.” The same should be true for
firearms, and, arguably, this is where New York’s law fails. The requirement
that applicants must show “proper cause” may be insufficiently clear and
objective, allowing officials to exercise an unconstitutional amount of
discretion.
If the court adopts this approach, it will follow a
clearly marked path that will force New York to reconsider its standards for
restricting guns in public, but allow it to still maintain some such
standards. If the public forum doctrine is good enough for those seeking to
exercise their First Amendment rights, it should be good enough for those who
wish to exercise their Second Amendment rights as well.
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