Title: Guns, Words, And Constitutional Interpretation
Abstract: In the aftermath of the Oklahoma City bombings, Linda Thompson, the self-appointed Acting Adjutant General of the Unorganized Militia of the United States, proclaimed that the Second Amendment isn't about hunting ducks; it's about hunting politicians.(1) She might as well have added that we ought to shoot a few politicians as a message to the rest to wake up and stop stealing our rights.(2) Thompson's statement represents the interesting, and not infrequent, constitutional blend of a First Amendment exercise to promote Second Amendment rights. She readily can be distinguished from mainstream constitutional law scholars both by profession and by example. Civil libertarians with strong First Amendment affinities traditionally have had even less use for the Second Amendment than gun advocates have had for the civil liberties of others.(3) In general, First Amendment scholars view the rights protected by the Second Amendment as deserving less protection than does thought.(4) They agree with the prevailing constitutional interpretation, which holds that the First Amendment guarantees strong individual rights to freedom of expression while the Second Amendment guarantees no individual rights at all, only a collective to have a very well regulated militia.(5) In the words of the American Civil Liberties Union (ACLU), [e]xcept for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected.(6) A small but growing, yet increasingly frustrated, group of constitutional scholars is arguing that the Second Amendment offers strong protection for an individual to possess guns.(7) Wishing parity with the First Amendment, they often place a nice wistful sentence or two about the First Amendment in their articles.(8) Their conversion rate, however, is incremental and slow-one person at a time every so often. In the meantime, most scholars reject the individual rights claim without seriously considering the merits of the scholarship on both sides of the issue. One reason is that the Supreme Court supposedly settled the issue, rejecting an individual rights claim, more than fifty years ago.(9) Another reason may be that the new Second Amendment scholarship conflicts with the hoped-for converts' political views.(10) Yet another reason may be that it analyzes the amendment in terms of text and history.(11) The former is unconvincing (save for those who wish to be convinced), while the latter rests on a claim that the dead hand of the past should rule the present. The debate, on its present terms, seems stagnant because it has become repetitious and stylized. Neither First Amendment nor Second Amendment scholars, nor any other constitutional law experts, have ever suggested that it might be enlightening to combine the two amendments and explore their interpretation not as a pair, but jointly nevertheless.(12) Putting the two amendments through the various modes of constitutional interpretation yields some interesting insights about both constitutional interpretation and preferences for certain rights. This Article explores these insights, after first placing Thompson's comments in the context of modern constitutional doctrine. I. THE ISSUE If both Linda Thompson's comments and my hypothetical extension of them were placed on a Constitutional Law exam, professors would have no difficulty flunking any student who did not recognize that Thompson's speech was protected fully by the current positive law of the First Amendment. Most professors probably would approve of this result. In the first place, she was at most advocating assassination, and generalized advocacy of violence receives full protection.(13) Only when advocacy merges into incitement would the speaker lose constitutional protection.(14) Second, right now is ambiguous as to time. Brandenburg v. Ohio(15) as well as Hess v. Indiana mandate an immediacy of action that Thompson's words, issued over broadcast television, lack. …
Publication Year: 1997
Publication Date: 1997-05-01
Language: en
Type: article
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Cited By Count: 4
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