Readers of Law and Liberty have heard—and perhaps even used—the famous phrase about free speech that is often misattributed to Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.” One wonders, though, whether this formulation actually makes much sense.
Readers of Law and Liberty may have noticed that I am a fan of Justice Antonin Scalia (for example, here and here). I am also an admirer of Robert H. Bork, whom my colleague John McGinnis has described as “the most important legal scholar on the right in the last 50 years.” Bork was a pioneer in both the field of antitrust law (with his influential 1978 book The Antitrust Paradox) and constitutional law, as the father of what we now call “originalism.” In his seminal 1971 article in the Indiana Law Journal, entitled “Neutral Principles and Some First Amendment Problems,” and in his later best-selling books, The Tempting of America (1990) and Slouching Towards Gomorrah (1996), Bork eviscerated the “noninterpretive” theories of constitutional law that dominated the legal academy in the 1960s and 1970s.
The ACLU has decided to not to defend the First Amendment rights of those who carry firearms to their protests. This decision betrays its historical commitment to protecting the free speech rights of all. First, people do not lose one constitutional right because they are exercising another simultaneously. Second, free speech doctrine offers ample room to address any problems caused by carrying guns.
The Second Amendment is as much a part of the Constitution as the First. And while the Supreme Court has not yet so held, the best scholarship suggests that the Second Amendment includes a right to possess arms outside the home in some fashion. After all, the right is to “bear arms” as well as to keep them. But even were there no such constitutional right, so long as having arms outside the home is lawful, a state or a municipality cannot condition that statutory right on giving up First Amendment freedoms. To do so would be a classic unconstitutional condition.
In any event, First Amendment doctrine has resources to deal with threats of violence should carrying guns raise them. For instance, it would be a reasonable time, place and manner regulation to separate protesters and counter protesters, if groups are armed.
Indeed, Charlottesville could have done so, had it pursed a more sensible legal strategy last week.
Suppose that it’s right that concealed carry restrictions were common in the founding era and no one thought they infringed any constitutional right. Is Professor Dorf suggesting that they nonetheless could be unconstitutional today? I can’t imagine how, as an originalist matter, that could be so. Perhaps if the text of the constitutional restriction were wholly incompatible with the founding era belief, we would say that people in the founding era had made an error. But here the language is at best ambiguous on the right to concealed carry (even if one thinks “bear[ing] Arms” means carrying them in public). If the language can be read in a way that comports with the consensus founding-era understanding of it, that seems pretty conclusive to me.
Karl Llewellyn’s classic Bramble Bush introduces law students to the case method and explains that precedents have both a minimum and a maximum value. Playing within that field and finding the point in both directions “beyond which it does not make sense to go” is central to establishing the fair meaning of judicial decisions. When one is moved, as I am here, to brand the city hall shenanigans that lead to the litigation in Jackson v. San Francisco, as blatant defiance of the Supreme Court’s decisions affirming the individual right to arms, Llewellyn’s instructions help to slow and unpack that reflex.
We are in the middle of another round in the effort to scuttle the right to keep and bear arms. Justice John Paul Stevens, while on the Supreme Court and since retirement, has urged interpreting the Second Amendment as an individual right to keep and bear arms “while in the militia” or some such. This renders the right empty and ultimately incoherent. (Try to imagine the right Stevens proposes and you get zero. As the majority in D.C. v. Heller stated bluntly in 2008, it is nonsense to talk about a right to keep and bear arms within an organization from which Congress has plenary authority to exclude you.)
Also jumping into the fray is Michael Waldman, whose “biography” of the Second Amendment uses the militia conversations during the ratification debates of the late 1780s to accuse the 20th century National Rifle Association of inventing the individual right to arms.
There is so much wrong here that it may take several posts to unwind. This post will focus on the basic mischaracterization of our constitutional scheme of rights and powers and how unbridled federal power perverts our conception of rights.