First Amendment Analogies and Second-Class Rights under Bruen: Is it Time for a Government-Arms Doctrine?
This guest post does not necessarily represent the views of the Duke Center for Firearms Law.
Last year’s Bruen decision has rightly attracted a great deal of attention for its rather surprising reading of Heller and its broader implications for the regulation of firearms. Other scholars have engaged with these features of the case, unpacking the new Second Amendment test the Court adopted. But, as a First Amendment scholar, what stands out most to me about Bruen is how radically it deviates from our approach to constitutional rights in other contexts—and how brazenly the Court mischaracterizes First Amendment jurisprudence to hide that fact.
Perhaps in an attempt to preempt criticism of its decision, the Bruen majority goes out of its way to claim that its history-based approach for evaluating rights under the Second Amendment “accords with how we protect other constitutional rights.” It goes so far as to suggest that the Bruen standard is important for rescuing Second Amendment rights from “second-class” status. It specifically holds up First Amendment jurisprudence as an exemplar for analysis of Second Amendment rights, noting the role that history plays in First Amendment jurisprudence. Bruen also leans on First Amendment analogies implicitly at other points. For instance, it describes the Second Amendment as issuing an “unqualified command,” drawing that language from a footnote in a First Amendment case. (As Jake Charles has highlighted, this is an especially strange choice because the cited footnote cuts against the Bruen Court’s characterization.)
Critically, Justice Breyer’s dissent points out that the Court’s characterization of First Amendment jurisprudence is misleading. Bruen rejects means-end scrutiny altogether for Second Amendment rights on the basis that the amendment itself “is the very product of an interest balancing by the people.” The majority draws this line from Heller, where that language purportedly describes both the First and the Second Amendment, but the Bruen Court then clearly imbues it with new meaning. As Justice Breyer rightly notes, Heller strongly implied that means-end scrutiny remained relevant for many Second Amendment questions. More importantly for present purposes, Justice Breyer reminds the majority that means-end scrutiny also remains at the heart of First Amendment doctrine.
Breyer is so obviously right about the role of means-end scrutiny in free-speech jurisprudence that it barely warrants acknowledgment. There’s just no question about it. Even regulations that suppress core political speech are subjected to means-end scrutiny, the precise level of which is calibrated to fit the type of site where a private citizen experiences the constraints of those regulations. (The level of scrutiny is stricter in traditional public forums, like public parks, than nonpublic forums, like airport terminals.) Shifting levels of means-end scrutiny quite simply define the approach the Court has used to adjudicate free-speech cases for decades now.
But Justice Breyer also badly undersells his point. The disconnect between Second Amendment rights under Bruen and First Amendment rights more generally is far greater than even his dissent would have us believe. Bruen encourages us to give significant weight to the post-ratification history of the Second Amendment in interpreting the scope of gun rights today. Suppose we did the same thing with the First Amendment, which, like the Second, was ratified in 1791.
Seven years after the ratification of the First Amendment, the federal government enacted the Alien and Sedition Acts of 1798, criminalizing a wide swath of criticism directed at the president and other officials. That statute would swiftly trigger a First Amendment challenge today, but the Court never considered its constitutionality at the time, and scholars believe it would have been upheld. For the argument that the law was widely perceived as constitutional at the time, see Anthony Lewis’ 2007 book Freedom for the Thought We Hate. In fact, it took over a century for the Court to wake up to the possibility of using the First Amendment to protect free speech in any significant way. Even then, the ball started rolling slowly, with some notable dissents and concurrences in the 1910s and 1920s. It ultimately took almost 135 years for the Court to hold that the First Amendment applies to state governments; 140 years for the Court to invalidate a state statute for violating the First Amendment; and almost 175 years for the Court to strike down a federal regulation for violating the constitutional right to free expression. The current Court’s reading of First Amendment protections would diverge enormously from the reading occasioned by a Bruen-style approach to the First Amendment.
Nowhere is this point clearer than in the context of one the Court’s more recent First Amendment innovations, the government-speech doctrine. The Court introduced the government-speech doctrine in the 1990s in an effort to address certain apparent cases of governmental viewpoint discrimination. The First Amendment presumption against viewpoint discrimination is itself a relatively recent development in the historical arc of the Court’s jurisprudence, but it has become extremely strong. Starting in the middle of the 20th century, the Court began coalescing around the conclusion that it heavily disapproves of governmental favoritism toward or against private expression based on the viewpoint (or even the content) that speech expresses. It turns out, however, that governance requires staking out substantive positions on a variety of matters in ways that could resemble unconstitutional viewpoint discrimination: for instance, the federal government uses funding to exert control over what doctors tell their patients; state governments decide which specialty license plates state residents can affix to their cars; and municipal governments determine which statues to install in public parks.
Enter the government-speech doctrine. The government must speak to govern, the Court has reasoned; when it does—and, crucially, even if private speech rights are also implicated by the government’s “speech”—the free-speech clause of the First Amendment simply does not apply. The Court has arrived at this conclusion despite the “unqualified command” of the First Amendment and the absence of any textual reference in the amendment to the government’s need to speak for itself or to dragoon private citizens into its expressive enterprises. The doctrine therefore functions as a safe harbor for the government, essentially preempting First Amendment claims when the Court deems it appropriate for the government to adopt certain views for itself or otherwise engage in viewpoint discrimination while governing. The doctrine has grown over the last 30 years, now reaching a significant range of federal, state, and municipal conduct that the Court formally recognizes as “government speech.” Another way of putting this is to say that if the government is speaking, we abandon means-end scrutiny for assessing burdens on private First Amendment rights—but this time the government wins, not the private citizen.
In light of the Bruen majority’s insistence that its approach to Second Amendment rights parallels its approach to First Amendment rights, it is worthwhile to consider a Second Amendment analogy to the government-speech doctrine. Elsewhere, I have developed this analogical heuristic, which I call the “government-arms doctrine.”
Suppose a state encounters a gun shortage that makes it impossible to arm its police adequately, perhaps due to supply chain issues. The state enacts a statute preventing anyone within its jurisdiction from acquiring certain firearms until it deems the police adequately equipped with the enumerated makes and models. Aggrieved would-be gun owners sue to enjoin the statute as infringing on their rights under the Second Amendment. In its defense, the state invokes a new doctrine: the government-arms doctrine. It argues that the Second Amendment only protects the gun rights of private owners, but it claims that the government must also own firearms to govern effectively. Although private citizens may feel that the policy burdens their rights, this new statute ultimately derives from the government’s need to secure firearms for its law enforcement officials, which in turn flows from its broad police power. The state thus argues not that the ordinance survives the appropriate level of scrutiny under the Second Amendment, but rather that the Second Amendment simply does not apply.
The government-arms doctrine may actually enjoy a firmer foundation than the government-speech doctrine. After all, the Second Amendment explicitly anchors the right to bear arms in the necessity of maintaining the “security of a free State.” There is therefore a colorable, constitutional argument that the government’s need to arm security personnel has textual support in the Second Amendment that is entirely missing from the First Amendment context. I nevertheless reject both the government-speech and government-arms doctrines. Governmental regulations that burden constitutional rights should have to survive at least some form of scrutiny, even if that scrutiny is relatively light in certain contexts. (I have therefore argued that the government-speech doctrine is both inherently unconstitutional and needlessly inelegant; we should address the government’s need to “speak” through an upgraded version of forum analysis.)
But that is my view, not the Court’s. For the Court, the fact that the First Amendment “is the very product of an interest balancing by the people” is evidently no barrier to the government-speech doctrine, which (contra Bruen) re-balances the government’s need to communicate against our free-speech rights by preempting certain First Amendment claims altogether. And, notably, the basis for the government-speech doctrine has nothing to do with history; it is a new judicial device grounded entirely in the perceived necessity of allowing the government to deviate from viewpoint neutrality.
That leaves us with a salient question: Does Bruen allow for a government-arms doctrine? It is hard to see how it could. If it doesn’t, that tells us everything we need to know about the majority’s suggestion that its opinion levels the playing field between First and Second Amendment rights. But if, somehow, the Court did allow a government-arms doctrine—even if only to stand up its Bruen analogy to the First Amendment—it would presumably have to justify such a doctrine by reference to historical gun regulations rather than necessity. The asymmetry between First and Second Amendment rights rears its head either way.
Whatever the other merits or demerits of the Court’s decision, let’s not pretend it maintains parity between the Second Amendment and the First. If anything, after Bruen, it is our rights under the First Amendment that are “second-class.”