“Guns as Smut: Defending the Home-Bound Second Amendment”

That’s the title of a new article in the Columbia Law Review (the link is just to an abstract, since no PDF is available). The law review asked me whether I could write a commentary for its online supplement (the Sidebar), and I did, here, under the title The First and Second Amendments; the author’s response to my response is here. Here’s the text of my article (for the footnotes, see the version I link to above):

I. The Supposed Analogy to Obscenity

Analogies between the First Amendment and the Second (and comparable state constitutional protections) are over 200 years old. District of Columbia v. Heller itself makes them, and they can often make sense.

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, 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.

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). 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 recognized as one of the “limited areas” of speech that “lack any serious literary, artistic, political, or scientific value,” and are thus “not protected by the First Amendment.” 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.

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.

Even carrying guns in public places is traditionally legal (though often with license requirements), 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, 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.

Yet Heller expressly holds that the Second Amendment secures an individual right to possess handguns “for the core lawful purpose of self-defense.” Whatever such a right might mean, it must include the right to accomplish that core lawful purpose by acquiring the handgun. 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.'” 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. The right “to educate one’s children” is usually exercised outside the home (including in the very cases the Article cites, Pierce v. Society of Sisters and Meyer v. Nebraska). The right to decide “whether and when to have a family” 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. 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.

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.” 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, but that Amendment is textually limited to “house[s].” The Article also points to the right to consensual sexual activity, 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. A ban on public possession of arms does not leave open ample channels to defend oneself when the need arises.

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.”

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.” 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, 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.” This was a nearly literal quote from the leading English commentator Serjeant Hawkins, 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.

American benchbooks for justices of the peace echoed this, citing Hawkins, though of course any class-based limitation to “persons of quality” could no longer be sustained. 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. 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.

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.”

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.

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. 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. In many states, such as Arizona, Delaware, and Maine, law-abiding adults may carry guns openly, even without licenses.

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” 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.)

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. 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.” Blackstone’s disagreement is simply with Locke’s assertion that deadly force can be used to resist “all manner of force,” 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.

The Article also argues that terrorist or revolutionary mobs may publicly carry arms under the pretext of self-defense. 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 arms — 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. 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, and courts have discussed it since (as well as relying on explicit constitutional rights to self-defense mentioned in state constitutions).

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.'” 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.