Firearms and the FIRST Amendment?

NPR and The New Yorker have recently reported that Sen. Ted Cruz (R-TX) and Sen. Dianne Feinstein (D-CA) exchanged words on the Senate floor about Sen. Feinstein’s recently proposed legislation to restrict firearms.[1]  The legislation, sparked by the horrific shooting incident at Sandy Hook Elementary School, would ban assault rifles and certain ammunition clips.

Sen. Cruz criticized the legislation by making an analogy between the Second and First Amendments, and asked Sen. Feinstein if she would “consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights.”

Sen. Feinstein’s initial response to the question and the coverage on broadcasts of the story on NPR focused on her defense of her understanding of the Constitution—as a senator of longstanding, she didn’t need a lesson on the Constitution.  Buried in her later remarks to Sen. Cruz’s remarks was the recognition that “there are different tests for different amendments.”  And I think this is a teachable moment.

To my hearing, Sen. Cruz’s comments reflected an understanding of constitutional rights that I think is also shared by the NRA and likely others as well—that rights articulated in the Bill of Rights are absolute, particularly as regards the Second Amendment.  But I think this understanding as a legal matter is incomplete.

As students of constitutional law are aware, no right is absolute.  Because individuals live in societies, reasonable regulations are imposed on individual behavior to prevent harmful actions by individuals who want to exercise their rights in unreasonable ways.  Is it okay for individual students to pray before a math test?  Yes.  Is it okay for the math teacher to lead those students in a state-mandated prayer before the math test?  Not so much.  Constitutional law is all about cases where the Court must balance the individual right in question against the state’s interest in reasonable regulation.  The question, of course, is what constitutes “reasonable” regulation.  Is a ban on assault weapons “reasonable,” or is it a serious restriction of an individual constitutional right that guarantees access to all weapons?  The answer to these questions rests on consideration of the importance and urgency of the government’s reason for the ban and the importance and nature of the individual’s right to bear arms.

Sen. Cruz’s remarks suggest that access to weapons is like access to books—implicit in his comments is that since access to books is not restricted under the First Amendment, access to firearms of all types shouldn’t be restricted either.  Yet, the Court has not provided an absolute protection for access to books; for example, school boards under Pico may remove books from a school library if they find that the books are “pervasively vulgar” or not suitable for educational purposes.[2]  This limitation would be consistent with the recognition of the importance of access to ideas as part of the educational function, balanced against the need for school boards to shape curricula for the development of young minds.  Can one draw an analogy to access to assault weapons, arguing that since the purpose of the right to bear arms is  self-protection, banning one type of weapon doesn’t significantly diminish that purpose, and thus, determining the government’s purpose in imposing this restriction would be crucial in determining the constitutionality of the legislation


[1] Eyder Peralta, “’I Am Not a Sixth Grader’: Sens. Feinstein, Cruz Spar on the 2nd Amendment,” The Two Way: Breaking News from NPR, 3/14/2013; http://www.npr.org/blogs/thetwo-way/2013/03/14/174332925/i-am-not-a-sixth-grader-sens-feinstein-cruz-spar-on-2nd-amendment (accessed 3/15/2013); Amy Davidson, “Feinstein and Cruz Fight About Guns,” The New Yorker, 3/14/2013; http://www.newyorker.com/online/blogs/closeread/2013/03/feinstein-and-cruz-fight-about-guns.html (accessed 3/15/2013).

[2] Board of Education v. Pico, 457 US 853, at 871.  Discussed in Claire Mullally, “Banned Books,” First Amendment Center, 9/13/03, http://www.firstamendmentcenter.org/banned-books; accessed 3/15/13.

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Filed under Freedom of Speech, Assembly, and Association, The Right to Keep and Bear Arms, Uncategorized

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