Response
to: Darrell A.H. Miller, Guns as
Smut: Defending the Home-Bound Second
Amendment, 109 Colum. L. Rev. 1278 (2009).
I. The Supposed Analogy to Obscenity
Analogies
between the First Amendment and the Second (and comparable state constitutional
protections) are over 200 years old.1
District of Columbia v. Heller itself makes them,2 and they can often make sense.3
Such
analogies might, for instance, yield the conclusion that (1) most guns (like
most speech) are fully protected by the Second Amendment, subject to some
restrictions that leave open “ample alternative channels” for effective self-defense,4 but (2) some narrow categories
of valueless or marginal weapons (like some speech) are unprotected. Distinctions between the two Amendments can
make sense, too, though I leave them for other articles.5
But Guns as Smut does something
peculiar: It analogizes a core category
of private arms to one of the least protected
and marginal categories of speech (obscenity).6
It’s hard to see any justification
for such an analogy, other than a purely instrumental one.
The
premise of the First Amendment’s obscenity jurisprudence is that
obscenity is historically recognized7 as one of the “limited areas”8 of speech that “lack any serious literary, artistic, political, or
scientific value,”9 and are thus “not protected by the First Amendment.”10
Obscenity, at home or elsewhere, is a marginal category of speech that
lacks the full protection that most speech gets. Because of this, selling, buying, and
possessing obscenity in public places can be outlawed, and long has been outlawed. Only the special “solicitude to protect the privacies of the life
within [the home]” leads to the prohibition on
punishment for mere home possession of obscenity.11
None of
this analysis applies to guns.
Possessing guns is traditionally legal.
Guns do serve the self-defense value that the Court has found to be
embodied in the Second Amendment. And, Heller held, ordinary guns are at the
core of “arms,” not on the margin.12
Even
carrying guns in public places is traditionally legal (though often with
license requirements),13 and serves the constitutional
value of armed self-defense. But I need
not rely on that: The premise of the
Court’s obscenity decisions is that
obscenity lacks constitutional value without regard to the place in which it
may be present,14 though it may not be suppressed
via intrusions into the home. That
premise does not extend to private gun ownership under Heller.
And
naturally Guns as Smut’s unsound premise leads to unsound results. If guns were really like obscenity, the
government would be free to ban the buying of guns and not just their public
possession. Guns as Smut’s conclusion indeed suggests that it “remain[s]
unresolved” whether the government could “so restrict[] the commercial availability of guns
that only guns in situ in the home, or those made by enterprising amateur
gunsmiths, would be beyond regulation”;
the Article’s interpretation of Heller “will
not, and cannot, provide [an] answer[]”
to that question.15
Yet Heller expressly holds that the Second
Amendment secures an individual right to possess handguns “for the core lawful purpose of self-defense.”16
Whatever such a right might mean, it must include the right to
accomplish that core lawful purpose by acquiring the handgun.17
No sensible interpretation of Heller can leave the status of that right “unresolved.” And no
sensible analogy between the Second and First Amendments can analogize typical
privately owned arms to material that the Court has expressly held lacks First
Amendment value.
II. The Supposed Analogy to Other Constitutional
Rights
Guns as Smut also claims that limiting the Second Amendment to
the home is supported by a special role for the home “located . . .
in ‘the Bill of Rights as a whole.’”18
Yet most of the rights to which the Article points as support for that
proposition apply outside the home as well.
Warren
and Brandeis’s (nonconstitutional) “right of determining, ordinarily, to what extent [a
person's] thoughts, sentiments and
emotions shall be communicated to others,”
a right lost “only when the author himself communicates
his production to the public,” isn’t about the home:
It would apply equally to thoughts communicated privately outside the
home as to those communicated within it.19
The right “to educate one’s children”20 is usually exercised outside the
home (including in the very cases the Article cites, Pierce v. Society of Sisters21 and Meyer v. Nebraska22). The right to decide “whether and when to have a family”23 is exercised partly by getting
contraceptives (or having abortions) outside the home, again including in one of the very
cases the Article cites, Eisenstadt v.
Baird.24
Though the Fourth Amendment has been read as giving extra protection in
the home, dozens of cases make clear that it provides substantial protection
outside the home as well.25
Guns as Smut returns to the Fourth Amendment late in the Article, pointing out how convenient a home-only Second Amendment would be for
legislators who wouldn’t have to deal with any possible “fact intensive, arbitrary, and incomprehensible
[Second Amendment] doctrine akin to Fourth Amendment search and seizure
jurisprudence.”26
Yes, radically limiting the scope of any constitutional constraint would
be convenient for legislators and courts.
But fortunately, such a radical limitation (“privacy as smut”?)
has not happened with the Fourth Amendment.
Despite the difficulties of articulating Fourth Amendment doctrine
outside the home, and despite the Amendment’s
textual reference to “homes,” courts have not thrown up their hands and concluded
that freedom from unreasonable searches and seizures should only cover the
home.
Two
rights do indeed apply only within the home, or similar places. Guns as Smut points to the Third
Amendment,27 but that Amendment is textually
limited to “house[s].” The Article
also points to the right to consensual sexual activity,28 but this just illustrates why
analogies between constitutional rights, while often helpful, are often
limited. A ban on public sexual activity
is, for nearly all people, a modest burden on the right, because it leaves
people free to shift to a private place.
At most, it makes sex slightly less convenient and less
spontaneous. (Exhibitionists might see
the restriction as burdensome, but the law doesn’t
treat such unusual tastes as deserving of accommodation.)
But
self-defense can’t be shifted to a more convenient
time or location. You can’t invite a robber back to your place, where you
might have a gun available to defend against him, the way you can invite a
lover to your place to have sex. To
borrow from the First Amendment’s “time,
place, and manner restrictions” doctrine, a ban on public sex
leaves open “ample alternative channels” through which one can derive the benefit of the
right—develop relationships, beget
children, and enjoy sex.29
A ban on public possession of arms does not leave open ample channels to
defend oneself when the need arises.30
III. The Supposed Historical Arguments for
Limiting Gun Rights to the Home
Guns as Smut likewise errs in its arguments that the right has
historically been seen as limited to the home.
To take one example, the Article argues that “Blackstone lumped low or no-value speech acts and
the public carrying of firearms in the very same category in his Commentaries: Libel and ‘challenges
to fight’ fall just behind riot, unlawful
hunting, and ‘riding or going armed, with
dangerous or unusual weapons’ as offenses to the public peace.”31
Blackstone,
though, was writing a brief summary of the Statute of Northampton, which he
rendered as “[t]he offense of riding or going
armed with dangerous or unusual weapons, is a crime against the public peace,
by terrifying the good people of the land.”32
And the Statute was understood by the Framers as covering only those
circumstances where carrying of arms was unusual and therefore terrifying.
Thus,
Justice James Wilson—a leading drafter of the U.S.
Constitution,33 and the first prominent American
legal commentator—described the prohibition as
covering “a man arm[ing] himself with
dangerous and unusual weapons, in such a manner, as will naturally diffuse a
terrour among the people.”34
This was a nearly literal quote from the leading English commentator
Serjeant Hawkins,35 who also went on,
[N]o
wearing of arms is within the meaning of this statute, unless it be accompanied
with such circumstances as are apt to terrify the people; from whence it seems
clearly to follow, That persons of quality are in no danger of offending
against this statute by wearing common weapons . . .
for their ornament or defence, in such places, and upon such occasions, in
which it is the common fashion to make use of them, without causing the least
suspicion of an intention to commit any act of violence or disturbance of the
peace. And from the same ground it also follows, That persons armed with privy
coats of mail, to the intent to defend themselves, against their adversaries,
are not within the meaning of this statute, because they do nothing in terrorem
populi.36
American
benchbooks for justices of the peace echoed this, citing Hawkins,37 though of course any class-based
limitation to “persons of quality” could no longer be sustained.38
Only public carrying “accompanied with such
circumstances as are apt to terrify the people”
was thus seen as prohibited; “wearing common weapons” in “the common fashion” was legal.39
And this is consistent with the pre-Civil-War American legal practice of
treating open carrying of weapons as not only legal but constitutionally
protected.40
IV. Public Gun Possession as Threat to Public
Debate?
Guns as Smut also argues that “the
presence of a gun in public has the effect of chilling or distorting . . . public deliberation and
interchange. . . . [E]veryone is deterred from
free-flowing democratic deliberation if each person risks violence from a
particularly sensitive fellow-citizen who might take offense.”41
This is
an intriguing speculation. One could
also engage in the intriguing rival speculation that people’s ability to defend themselves may support public interchange, by assuring
minority speakers that they can protect themselves against violent suppression. Private gun ownership was sometimes used this
way during the civil rights era.42
But
fortunately we don’t need speculation; we have ample
experience. In Vermont, people have long
been free to carry concealed weapons without a license. In New Hampshire and the state of Washington,
law-abiding adults have been legally entitled to concealed carry licenses for
over 50 years.43
Today, law-abiding adults can get such licenses in all states except
California, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey,
New York, Rhode Island, and Wisconsin.44
In many states, such as Arizona, Delaware, and Maine, law-abiding adults
may carry guns openly, even without licenses.45
Is public
debate on balance especially inhibited in any of these categories of
states? Is speech in Arizona, Vermont,
and Washington less free than in Hawaii, Maryland, or New York, which try to
limit the supposed “smut” of guns to the home? I know of no evidence for this, and Guns as Smut doesn’t point to any.
V. Anxiety About Self-Defense
Guns as Smut also seems to express concern about public
self-defense more broadly.
The Article suggests that early American
law was “ambivalent”46 towards armed self-defense in
public. No; there was no doubt at the
Framing of people’s right to defend themselves in
public using deadly force against murder, rape, or robbery, so long as the use
of deadly force was genuinely necessary.
(The necessity requirement explains the “duty
to retreat” that’s imposed in many states—if one can defend oneself safely without killing,
then the killing isn’t necessary.47)
Nor did
Blackstone “specifically reject[] the Lockean
notion that a man had a right to kill an aggressor in public” when it came to genuine self-defense against
serious crime.48
Blackstone expressly said that, “If any person attempts a robbery or murder of
another . . . and shall be killed in such
attempt, the slayer shall be acquitted,”
and likewise for “a woman killing one who attempts
to ravish her.”49
Blackstone’s disagreement is simply with
Locke’s assertion that deadly force can
be used to resist “all manner of force,”50 including force other than
robbery, rape, or murder. Justice Wilson
likewise made clear that homicide was protected “when
it is necessary for the defence of one’s
person,” and not just for the defense of
one’s home.51
The Article also argues that terrorist or revolutionary mobs may publicly carry
arms under the pretext of self-defense.52
Yet the legal system has had, and should have, little difficulty
distinguishing individual citizens’
permissible legal possession for self-defense from mob action aimed at
attacking or terrorizing. Past refusals
to suppress some mob action—which left victims to fend for
themselves, sometimes with their private arms53—have stemmed from deliberate governmental
underenforcement of normal criminal law, not from law-abiding citizens’ right to carry guns.
Finally,
the Article worries that a right to bear arms outside the home may lead to the
constitutionalizing of self-defense law.54
And indeed the right to bear arms in self-defense has been used as a
support for the well-established criminal law of self-defense. Justice James Wilson spoke of this in 1791,55 and courts have discussed it
since (as well as relying on explicit constitutional rights to self-defense
mentioned in state constitutions).56
But that’s not much of a horrible for Guns as Smut’s parade. Even under the narrow Washington v. Glucksberg test, the Constitution protects
unenumerated “fundamental rights and liberties
which are, objectively, ‘deeply rooted in this Nation’s history and tradition.’”57
The right to self-defense should indeed qualify under that test, even
without support from the Second Amendment.
Nor should recognizing such a right cause much change in the law, given
that the core of the right—the right to use even deadly
force when necessary to protect against the most serious crimes—is uncontroversially recognized by statutes and the
common law.
* * *
I have
reached my allotted word limit, so I leave the rest of Guns as Smut’s 79 pages to others. Suffice it
to say that, whatever sound arguments there might (or might not) be for
limiting gun rights to the home, the arguments that Guns as Smut gives do not qualify.
* Gary T. Schwartz Professor of Law, UCLA School of Law (volokh@law.ucla.edu).
1 See,
e.g., Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 330 n.* (Pa. 1788) (“The
right of publication, like every other right, has its natural and necessary
boundary; for, though the law allows a man . . . the
possession of a weapon, yet it does not authorize him to plunge a dagger in the
breast of an inoffensive neighbour” (relating statement by William
Lewis, then a Pennsylvania legislator and later a federal judge)); H.P.
Nugent, An Account of the Proceedings had in the Superior Court of the
Territory of Orleans, Against Thierry & Nugent for Libels and Contempt of
Court 43 (Philadelphia 1810) (“[A]s the liberty of keeping arms
is not the liberty of killing or maiming whom we please, so is not the liberty
of the press, the liberty of publishing libels” (relating statements by Judge
François
Xavier Martin, then a territorial judge and later Chief Justice of the
Louisiana Supreme Court)); Commonwealth v. Blanding, 20 Mass. 304, 314 (1825) (“The
liberty of the press was to be unrestrained, but he who used it was to be
responsible in case of its abuse; like the right to keep fire arms, which does
not protect him who uses them for annoyance or destruction.”).
2 128 S.
Ct. 2783, 2791, 2799 (2008).
3 See,
e.g., Eugene Volokh, Implementing the Right to Keep and Bear Arms for
Self-Defense: An Analytical Framework
and a Research Agenda, 56 UCLA L. Rev. 1443, 1449, 1452, 1454–55
(2009); see also L.A. Powe, Jr., Guns, Words, and Constitutional
Interpretation, 38 Wm. & Mary L. Rev. 1311 (1997) (analogizing two
Amendments in the course of exploring whether Second Amendment secures an
individual right).
4 See,
e.g., Volokh, supra note 3, at 1454–59.
5 See,
e.g., id. at 1472, 1548.
6 Darrell
A.H. Miller, Guns as Smut: Defending the
Home-Bound Second Amendment, 109 Colum. L. Rev. 1278, 1280 (2009).
7 See Roth v. United States, 354 U.S. 476,
483–84
(1957) (relying heavily on history in concluding obscenity is constitutionally
unprotected); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57, 61, 67, 69
(1973) (relying on Roth and on
history in reaffirming obscenity exception).
8 R.A.V.
v. City of St. Paul, 505 U.S. 377, 383 (1992).
9 Slaton, 413 U.S. at 67.
10 Id. at
54.
11 United
States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 127 (1973)
(quoting Poe v. Ullman, 367 U.S. 497, 551 (1961) (Harlan, J., dissenting)).
12 District
of Columbia v. Heller, 128 S. Ct. 2783, 2791, 2817 (2008).
13 Steven
W. Kranz, A Survey of State Conceal and Carry Statutes, 29 Hamline L. Rev. 638,
647, 657 (2006).
14 12 200-Foot Reels of Super 8mm. Film,
413 U.S. at 126 (“[O]bscene material is not protected by the First
Amendment. . . . Stanley depended, not on any First
Amendment right to . . .
possess obscene materials, but on the right to privacy in the home.” (citing Stanley v. Georgia, 349 U.S. 557, 569
(Stewart, J., concurring))); Slaton, 413 U.S. at 67.
15 Miller,
supra note 6, at 1356.
16 Heller, 128 S. Ct. at 2797, 2818.
17 The
prohibition on banning possession of obscenity doesn’t
include the right to buy obscenity precisely because obscenity is seen as far from
the core of First Amendment protection.
See, e.g., United States v. Reidel, 402 U.S. 351, 358–59
(1971) (Harlan, J., concurring).
18 Miller,
supra note 6, at 1305 (quoting Michael C. Dorf, Does Heller Protect a Right to Carry Guns Outside
the Home?, 59 Syracuse L. Rev. 225, 232 (2008)) .
19 Id. at
36 n.198; Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4
Harv. L. Rev. 193, 198–99 (1890).
20 Miller,
supra note 6, at 1305.
21 268 U.S.
510, 536 (1925) (striking down law requiring public school attendance).
22 262 U.S.
390, 403 (1923) (striking down law prohibiting teaching of foreign languages in
school).
23 Miller,
supra note 6, at 1304.
24 405 U.S.
438, 454–55 (1972) (striking down law
prohibiting distribution of contraceptives to unmarried persons).
25 See
Miller, supra note 6, at 1304–05.
For examples from just this past year, see Safford Unified School Dist.
No. 1. v. Redding, 129 S. Ct. 2633, 2635 (2009) (holding middle school search
of student’s underwear violated Fourth Amendment), and Arizona
v. Gant, 129 S. Ct. 1710, 1713 (2009) (finding search of car unreasonable under
Fourth Amendment where defendant was arrested for driving with suspended
license).
26 Miller,
supra note 6, at 1351.
27 Id. at
1304.
28 Id.
29 See
Volokh, supra note 3, at 1515, 1516 n.308.
30 Id.
31 Miller,
supra note 6, at 1308.
32 4
William Blackstone, Commentaries *148–*149.
33 See,
e.g., Ralph Rossum, Wilson, James, in Encyclopedia
of the American Constitution 2908 (Leonard W. Levy & Kenneth L. Karst eds.,
2d ed. 2000).
34 2 James
Wilson, The Works of James Wilson 654 (Robert McCloskey ed., Harvard Univ.
Press 1967) (1804) (printing one of Justice Wilson’s
lectures on law); id. at 67 (noting lectures were delivered in 1790 and 1791).
35 1
William Hawkins, A Treatise of the Pleas of the Crown 135, ch. 63, § 4
(photo. reprint 1978) (1716).
36 Id. at
136, ch. 63, § 9.
37 See,
e.g., William W. Hening, The New Virginia Justice, Comprising the Office and
Authority of a Justice of the Peace, in the Commonwealth of Virginia 17–18
(Richmond, T. Nicolson 1795); James Parker, Conductor Generalis; or the Office,
Duty and Authority of Justices of the Peace 11 (New York, John Patterson 1788);
see also Simpson v. State, 13 Tenn.
356 (1833).
38 See,
e.g., Hening, supra note 37, at 18 (“[T]he wearing of common weapons . . . merely
for ornament or defence, where it is customary to make use of them [is not
illegal].” (citing Hawkins, supra note 35, at 136, ch. 63, § 9)).
39 Hawkins,
supra note 35, at 136, ch. 63, § 9.
40 See
Volokh, supra note 3, at 1517–18 n.312.
41 Miller,
supra note 6, at 1309–10.
42 Robert
Cottrol & Ray Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration,
80 Geo. L.J. 309, 355–58 (1991) (suggesting private gun ownership and gun
carrying emboldened some civil rights activists and deterred terrorists who
would have otherwise attacked the activists).
43 Kranz,
supra note 13, at 647, 657.
44 Id.;
Kan. Stat. Ann. § 75-7c03 (Supp. 2008) (statute enacted after Kranz article was published); Neb. Rev. Stat. § 69-2430
(Supp. 2008) (same).
45 Compendium
of State Firearms Laws, 217 PLI/Crim 203, 205 (2009) (compiled by the NRA
Institute for Legislative Action, but submitted by Art Parker from the Office
of the Attorney General of the District of Columbia)
.
46 Miller,
supra note 6, at 1343.
47 See,
e.g., United States v. Travers, 28 F. Cas. 204, 206 (C.C.D. Mass. 1814) (No.
16,537).
48 Miller,
supra note 6, at 1343 n.410.
49 Blackstone, supra note 32, at *180–*181.
50 Id.
51 3
Wilson, supra note 34, at 84–85.
52 Miller,
supra note 6, at 1332–34.
54 Miller,
supra note 6, at 1354.
55 3
Wilson, supra note 34, at 84–85.
56 See
generally Eugene Volokh, State Constitutional Rights of Self-Defense and
Defense of Property, 11 Tex. Rev. L. & Pol. 399 (2007).
57 521 U.S.
702, 720–21 (1997).
Preferred
Citation: Eugene Volokh, The First and Second Amendments, 109 Colum. L. Rev. Sidebar 97 (2009),
http://www.columbialawreview.org/Sidebar/volume/109/97_Volokh.pdf.