Our First Second Amendment

This guest post is based on a paper that was presented at the 2025 Firearms Law Works-In-Progress Conference and reflects the author’s views only. The Conference is held each year on a home-and-away basis with the University of Wyoming Firearms Research Center. This post also appears on the FRC's Forum.

The crossroads of First and Second Amendment jurisprudence have reached an impasse. While proponents of the Supreme Court’s recent near-sole emphasis on history in the Second Amendment context cheer that mode of review as producing more principled jurisprudence, others claim that this method of review is a constitutional anomaly that makes the Second Amendment a “super right.”

The Supreme Court’s pre-Bruen Second Amendment jurisprudence can be fairly interpreted as tacitly endorsing the judicial interest balancing common in First Amendment litigation. District of Columbia v. Heller interpreted the Second Amendment as an individual right related to, but not dependent on, service in a militia. In the course of doing so, it struck down a total ban on private handgun ownership and relied on history insofar as it interpreted the very meaning of the Second Amendment itself. It did not purport to establish a history-only approach to analyzing all issues pertaining to the Second Amendment. The Court’s discussion of the actual question presented, whether the District of Columbia’s handgun ban was constitutional, was brief. The majority thought it sufficiently clear that a ban on handguns, as a class the most popular weapon for self-defense in the United States, failed as a matter of historical precedent and under any level of judicial interest balancing.

Lower courts decided to rely on interest balancing to answer more nuanced issues: for instance, the constitutionality of bans on certain subcategories of firearms and bans on gun possession by certain classes of individuals. Were it not for their inability to apply that balancing in a principled way, the Supreme Court might well have endorsed this approach.

In the years prior to Bruen, many courts assumed without deciding that a challenger’s proposed course of action fell within the plain text of the Second Amendment. In other words, the challenged regulation, at least on its face, infringed on the right of the people to keep or bear arms. On occasion, the court would then uphold the regulation by applying a watered-down form of intermediate scrutiny that in practice differed in no substantial regard from rational-basis review. Under this reasoning, the government wins a case if its law “bears a rational relation to some legitimate end.” Using this method of review, multiple courts upheld near total bans on “bearing” arms in public. Under this precedent, courts in New York referred to the possession of a handgun as a “privilege, not a right,” on par with how the same courts treat the ownership of a liquor license. A court in New Jersey upheld the denial of a handgun permit application because the applicant’s wife, with whom he resided, had a felony conviction, despite the applicant himself having a clean record. And a court in California concluded, with no analysis whatsoever that a residential driveway constituted a sensitive place from which guns could be banned. It was against this backdrop that the Court in N.Y. State Rifle & Pistol Association v. Bruen required that judges uphold only those firearm regulations that are consistent with historical tradition. Since Bruen, however, many courts have openly expressed frustration with this task, and some have found creative ways to uphold gun regulations with sparse historical pedigrees.

While I believe claims of Bruen’s unworkability are seriously overblown, to the extent judges are truly struggling to apply it, my article offers one solution. Courts should analogize to and draw from First Amendment principles in Second Amendment cases. At first blush, this might seem odd because it sounds like just the opposite of what the Supreme Court has instructed litigants and judges to do. But my proposal is both faithful to the Court and to history. I offer two familiar First Amendment principles that have rough analogues in the Second Amendment space: (1) the almost per se invalidity of content-based regulations and (2) public forum and “time, place, and manner” (TPM) regulations.

The almost per se prohibition on regulating speech based on the content of its message is analogous to the historical principle that laws that perniciously targeted the right to bear arms were unconstitutional. Historically, those laws that impacted arms and ammunition often targeted externalities associated with weapons. For instance, colonial laws forbidding the stockpiling of gunpowder in enclosed spaces were a response to the obvious risk of combustion. Similarly, prohibitions against small and concealable weapons were aimed at suppressing items used by criminals. This reasoning did not support regulations of common self-defense weapons. In fact, many nineteenth-century laws restricting the public carry of pistols either explicitly exempted larger, military-style handguns or were interpreted to do so. In the analogous First Amendment context, laws that target speech for its content are almost always held unconstitutional. But laws that restrict speech without regard to its content or only incidentally impact speech rights are judged according to intermediate scrutiny. Some modern gun restrictions are similarly justified without regard to the right to bear arms. For instance, the prohibition against carrying firearms on commercial airplanes can be justified based on the risk that explosives like gunpowder pose to a pressurized cabin, making them roughly analogous to the colonial gunpowder laws.

Even some laws that target speech by content, such as bans on adult entertainment establishments to deter crime and maintain property values, may be upheld if the government shows it isn’t targeting expression itself but rather its secondary effects. Under this reasoning, the government would not offend the Second Amendment if it decided to ban weapons, such as the allegedly defective Sig Sauer Sig Sauer P320 handgun, for reasons other than their obvious lethality. Nor would bans on weapons almost exclusively used for illicit purposes, like “switches” that functionally convert semi-automatic handguns into fully automatic firearms, be invalid.

The First Amendment’s “time, place and manner” doctrine is analogous to “sensitive place” restrictions in the Second Amendment context, and the former may help to craft historically sound categories of locations from which firearms may be banned. In the First Amendment context, courts have divided public spaces into three zones in which speech is protected according to varying levels of scrutiny. In two of these areas, traditional and designated public fora, the government may not engage in content-based restrictions on speech, but it can enact reasonable restrictions on the time, place and manner of speech within. In non-public fora, the government may regulate speech as it sees fit, save for discrimination on the basis of viewpoint, because these spaces have not been traditionally open for free expression or designated for it.

Courts and litigants would benefit from a clear framework that categorizes different types of locations according to the degree to which firearm regulations are permissible under the Second Amendment. Historical tradition suggests that when the government assumes responsibility for securing a space critical to governance or civic participation, it may justifiably prohibit firearms there. Obvious examples include courthouses and legislative chambers, but similar logic may extend to places like military installations and city halls. By contrast, vague or expansive bans on firearms in places of public accommodation are not historically justified. Such a theory of sensitive locations is incompatible with both history and the way that public speech and expression are protected.

While these two uniquely First Amendment doctrines show promising overlap in the Second Amendment sphere, they are likely not an exhaustive list. For instance, the overbreadth doctrine that allows certain speech laws to be struck down on a showing that they operate unconstitutionally in most, but not necessarily all, applications, could easily be applied to the Second Amendment context. Laws that grant licensing officials unbridled discretion in approving firearm applications and regulatory schemes prohibiting firearms from most public places are likely candidates.

The purpose of these analogues is not to advocate a return to interest balancing. Instead, I aim to offer workable methods for courts to conceptualize Second Amendment challenges using familiar doctrines and precedent.