September 2017
This issue's contents Current issue Search

The First Amendment's Evil Twin

by Jonathan Wallace

The Second Amendment has always strangely shadowed the First: both are apparently categorical statements that something shall not be denied us, one the right to speak out, the other the right to own a gun. Up until the Supreme Court's 2008 decision in Heller, the relationship between the two amendments was like that between two siblings, one of whom is an undeveloped recluse at home, the other a star in the world--the relationship, in fact, between Gertrude Stein and her brother Leo, who wrote in a 1934 letter: She's basically stupid and I'm basically intelligent. I....through the upsetting, complicating and stultifying effects of a terrific neurosis, could build nothing substantial on my intelligence, which came through only in fragments and distorted bits”. Janet Malcolm, Two Lives (New Haven: Yale University Press 2007) pp. 39-40 The Supreme Court limited the Second by its terms in a 1939 case to the support of official militias, and then starved it of attention until Heller--which revolutionized constitutional jurisprudence by holding, for the first time at Supreme Court level, that an individual right exists to keep and bear arms.

Full disclosure: I believe that the history of guns and gun control in America is partly attributable to the Second Amendment's incautious wording; to the extent it was intended to create a personal right, it did so in the context of a world without standing armies, where as late as 1812, wars were fought principally with state militias. Thus the Second Amendment as conceived has little applicability to our circumstances today. However, for the purposes of argument, in this essay I will assume an individual right to weapons exists as described by the NRA and other devout proponents.

Assuming that I, as an American citizen, have similar and equally important rights to call for President Trump's impeachment and to own a rifle, should not those rights be interpreted under similar tests and rule-sets? What would be the rationale for determining that one right, the right to speak, is conditional, while the other, the right to own a gun, is absolute?

Under the very extensive, intellectual, precise, and fully elucidated jurisprudence of the Supreme Court regarding the First Amendment, the words "no law" have never truly meant no law. Most First Amendment cases are instead decided under a Constitutional standard invented by the Court called "intermediate scrutiny", which asks whether a law, or government action, is "narrowly tailored to a significant government purpose and allows ample alternative means of communication". It has been applied in cases relating to the amplification of a political concert and whether homeless demonstrators could sleep on the Washington Mall. In either case, "intermediate scrutiny" led to a conclusion that government restrictions were valid. The rules about amplifiers allowed the audience to enjoy the concert anyway, and served a government purpose of not hurting people's ears and disturbing neighbors. The regulation in the other case allowed homeless protesters to camp on the Mall, but not sleep there, and was justified by security and hygienic concerns.

Since all First Amendment jurisprudence involves a balancing act of non-speech interests against the right to speak, why should not the Second Amendment similarly balance Jill's right to own a gun against Jack's, I don't know, interest in not being shot dead by automatic weapon-fire while attending an outdoor country music concert? A version of "intermediate scrutiny" applied in Second Amendment cases would justify a very great deal of gun control, just as it validates a good deal of speech control under the First Amendment.

There is nothing in the wording of the two amendments which would prevent this outcome or dictate that the Second creates a more absolute right, extending to cop-killer bullets, silencers, semi-automatic weapons, or bump stocks. Why the difference in treatment? The most charitable argument I could make is that Leo Stein has just come out of his room, and needs some time to get socialized. There may be some element of that--what the Supreme Court does next will be interesting--but there is another more important difference: Money. There is no First Amendment lobby which, if a Congresscritter speaks up for a censorship law (as even Democrats routinely do when expedient), will assure she is defeated in the next primary or general election. Here we have an extreme, outlying example of a sadly familiar phenomenon, constitutional jurisprudence being warped by dollars. Similarly, many First Amendment decisions have had hidden subtexts. McIntyre v. Ohio, a seemingly benign 1995 ruling that an Ohio housewife did not have to append her name to a leaflet she distributed about a school board election, opened the door for Citizen's United and the triumph of dark money. Mrs. McIntyre's leaflet, Koch brothers' millions, same thing. Yeah.

In a world awash in sophistry from every side, it is refreshing when anyone tells even a partial truth about her views, as Bill O'Reilly did recently in commenting on the Las Vegas mass shooting: “This is the price of freedom....Violent nuts are allowed to roam free until they do damage, no matter how threatening they are." He was apparently quoting Harlon Carter, the man who radicalized NRA: “When asked about such dangerous individuals wielding guns, Carter deemed it 'a price we pay for freedom'”. This is still morally dishonest, though, because both O'Reilly and Carter, not having themselves been shot, nor losing loved ones in a mass shooting, were really saying: "This is the price you pay for my freedom".