In New York State Rifle & Pistol Association Inc. v. City of New York, New York, the first gun case to reach the high court in almost a decade, gun rights advocates pushed their conception of the scope of the right in a novel direction. The city regulation being challenged in the case restricted New York City residents who had obtained a premises license from traveling with their arms in public apart from a few well-defined exceptions. The challenged regulation did allow permit holders to take their weapons to firing ranges in the city but prohibited them from taking guns to a country house or firing range outside of the city. Much of the oral argument focused on the fact that the original regulation at the heart of the case had already been repealed by the city and preempted by new state regulations that effectively barred the city from re-enacting the regulation. In the technical language of the law the case had been mooted. One legal commentator even compared the case to the famous Monty Python sketch in which a dead parrot is palmed off as merely resting. The irate customer eventually declares: “This is an ex-parrot.” Several justices, frustrated with the arguments presented by former solicitor general Paul Clement, stopped short of mimicking Monty Python’s John Cleese, but the underlying point was the same. There is no live issue in this case for the Supreme Court to adjudicate. Most court watchers feel that because it no longer represents a live controversy, a requirement hard wired into the Supreme Court’s Article III constitutional power to hear cases, it will be mooted.
Rather than concede the mootness point and live to litigate another day, Paul Clement urged the high court step into one of the most controversial issues in American public life. The heart of Clements’s argument was that his clients might still run afoul of the law if they stopped for a coffee on the way to a firing range outside of the city. Thus, the Second Amendment envisioned by the gun rights lobby and defended by Clement apparently now includes a right to bear lattes, alongside the right to bear arms. If one reviews the transcript of the oral argument the word “coffee” appears almost as often as the phrase “Second Amendment.” Clements’s right to bear lattes argument shows that the version of originalism driving today’s Second Amendment debate has become completely un-moored from any historical foundation.
In an interview conducted prior to oral argument Clement tried to analogize New York’s law to a prohibition on using out of state libraries, a restriction that would run afoul of the First Amendment. There are many problems with this analogy. Guns and words are fundamentally different and have always been treated differently under American law. There is no historical reason to analogize the First and Second Amendment. Nor does this analogy make much sense from the perspective of text, history, and structure. A careful and close reading of the language of the two texts and an analysis of their structure undercuts arguments that the two texts ought to be treated similarly as a matter of law.
The First Amendment talks about the abridgement of rights, and the Second Amendment discusses the infringement of a right. (The gun lobby has even tried to turn the singular right mentioned in the text into a plural cluster of Second Amendment rights, a fact that has not garnered enough attention thus far, but ought to receive some attention in future scholarship.) Abridgement meant diminish and infringement meant destruction. Thus, limits on the scope of the Second Amendment pose no constitutional barrier until they approach a destruction of the right. In short, the different language used in the two texts clearly suggests different scopes to the range of regulatory authority that we the people acting through our duly elected representatives may exercise in this area. Gun rights advocates seem to have forgotten that the most important right in the pantheon of eighteenth-century liberties was the right to representation and its concomitant power to enact laws for the public good.
The Second Amendment also contains a preamble, affirming the necessity of a well regulated militia. At the time of its drafting preambles were widely understood by those steeped in English modes of legal interpretation to provide the key to unlocking the meaning of the text. It is notable that in District of Columbia v. Heller, the controversial, but landmark, gun rights case that Clement cited for authority, Justice Scalia had to turn to legal treatises written almost a half century after the Second Amendment to get around this fact. In one of the most surreal moments in American constitutional law, Scalia opined that in the case of the Second Amendment one had to read the text backwards, taking up the second clause first and only then turning to the first clause.
As a matter of history, guns and words have never been treated the same. Thus, neither history nor common sense supports Clement’s argument. Nobody has ever died as a result of a drive by printing. Guns were always subject to a range of regulations that would never have been permissible for freedom of speech. The government could force one to bear arms, but it could not force one to speak. Privately owned arms related to obligatory militia service were subject to government inspection. Yet the one thing that virtually all Americans agreed about regarding the scope of First Amendment type freedoms in the Founding era was the prohibition on prior restraint for publication. One might be punished for libel after printing, but government could not stop you from speaking your mind. By contrast, the federal government and many of the states required individuals to swear loyalty oaths or face disarmament. No state restricted the rights of citizens or residents to practice their religion or publish their sentiments to taking a loyalty oath. Guns and words are simply different. This was true in the Founding era and remains true today.
The New York Pistol case will likely be deemed moot, assuming the Supreme Court follows its own precedents on this issue. Still, based on the oral argument it seems clear that the most ardent gun rights advocates on the Court are eager to expand gun rights further. Much of their case for this effort to “super-size” the Second Amendment, expanding its scope beyond anything remotely rooted in the actual text and historical meaning of the right to bear arms, rests on bad analogies, poor history, and tortured logic. The Supreme Court ought to resist such judicial activism and steer clear of conjuring out of thin air a right to bear lattes.