Protests have raged across the country this year and unfortunately Chicago Mayor Lori Lightfoot has openly affirmed, “We saw too. . . People who have embedded themselves in these apparently peaceful protests and come to a fight. “As a result of such civic disruption, more people in jurisdictions such as Illinois and Minnesota, places with widespread looting and even arson, wanted instant access to firearms. However, some jurisdictions, including this one, have failed to process licenses to buy or carry firearms in a timely manner.
Such delays violate the right of the people to keep and carry arms. In the District of Columbia v Heller case, the Supreme Court explicitly ruled that the right to own a gun at home was essential to the second amendment, and the right was extended to the states by McDonald v Chicago. For example, Illinois introduces lengthy delays in obtaining even the licenses necessary to purchase a gun for personal or business use. The law allows for a delay of up to 30 days, and in June it took an average of 51 days to get the required FOID card. A colleague of mine hasn’t received one after 170 days. A belated weapon will be denied for self-defense. This is particularly problematic in times of increased violence and looting. A weapon – even one that is never fired – can mean the difference between a burned down business and a sustainable livelihood.
An analogy with the First Amendment shows why the delays in access to weapons are unconstitutional. While the first amendment allows states to require licenses for demonstrations (due to the need to prevent interference with other activities), such licenses cannot be unduly delayed in such a way as to effectively undermine the right to freedom of expression. Additionally, the first amendment suggests the need for license exemptions for demonstrations in response to breaking news. In any event, the judges allowed brief delays of just a few days before the license for demonstrations had to be issued.
Similarly, licensing under the second amendment is allowed to ensure that guns do not end up in the hands of offenders and the mentally ill – categories of people identified by the Supreme Court have no right to guns. However, delays in issuing weapons licenses during riots would invalidate the law of the second amendment, as would unnecessary delays in issuing protest licenses for the first. In addition, significant delays are not required to determine if someone is a felon or has been classified as mentally ill, as the federal gun inspection program shows. These delays are also far more serious than any “cooling off” period that would help prevent crimes of vengeance or passion, even if such a reason for the delay were compatible with the provision of the Second Amendment on a right to self-defense.
In a recent article, I offer new evidence as to why the analogy between the first and second amendments is particularly appropriate. And surprisingly, this evidence, while never discussed before in the context of the second amendment, also provides fresh support for the thesis that the second amendment articulates an individual right, the purpose of which was to protect, and not just, personal safety a collective right through which the militia can be exercised. And it comes from none other than James Madison, father of the Constitution and author of the Bill of Rights. Talk about evidence hiding in sight!
The advantage of interpreting the second amendment by analogy with the first amendment is that it introduces a well-reticulated collection of principles from the first amendment to guide a law on the second amendment that is still in its infancy.
The newfound support is reflected in his explanation of the natural law basis of the Bills of Rights provisions, which were published shortly after they came into effect. There he compares various components of the Bill of Rights with “property rights” and this in loose terms that focus on the power of the individual over the rest of the world:
[Property] in its particular application means “that dominion which a man claims and exercises over the external things of the world, to the exclusion of any other individual”.
[A] Man has a quality in his opinions and the free communication of them.
He has a quality of particular value in his religious beliefs and in the profession and practice they dictate.
He has a property that is very important to him in terms of the security and freedom of his person. . .
This is the end of government, that alone is just government, impartially securing to every person whatever his own.
Madison describes rights here that pursue rights protected in the Bill of Rights. He sees them as individual rights that everyone can exercise directly. I have italicized the most relevant language for the second amendment because the link has never been established before. It seems clear that this is indeed a reference to the second amendment, as Madison’s discussion follows immediately after the individual rights at issue in the first amendment. This passage also suggests that Madison views the second amendment as a right related to self-defense. Hence, it cannot simply be dismissed as a right to avoid government tyranny, which can only be effective when exercised collectively. It is an individual right that protects personal safety.
In addition, this passage provides a strong justification for drawing analogies between the first and second amendments. Madison’s comment shows that both individual rights are equivalent to what was considered to be another sacred individual right at the time – property rights. Although these rights can possibly be regulated for the common good, they cannot be curtailed or violated. Judicial review prevents the political branches from violating them under the guise of promoting the common good.
The interpretation of the second amendment in analogy to the first has the particular advantage that a well-reticulated collection of principles of the first amendment is introduced in order to guide a law on the second amendment that is still in its infancy. More importantly, the reference to the first amendment also encourages a neutral treatment of the second amendment, since judges as a class are likely to be more sympathetic to the natural right to expression than to the natural right to self-defense. Judges are uniformly lawyers who make a living from words: The natural right to their opinion is a source of their livelihood. While some may own guns, there is no professional reason to believe that they will have such a supportive attitude towards the natural right to self-defense.
Indeed, as Justice Antonin Scalia stated in another context: “[W]Federal judges live in a world separate from the vast majority of Americans. After work, we retreat to houses in quiet suburbs or to high-rise cooperatives with guards at the door. We are not facing the threat of violence that is ever present in the everyday life of many Americans. “Taking into account analogies with the First Amendment therefore helps the judiciary to see the full weight of what protection a natural right deserves in a context with which they are more familiar and more sympathetic. Neutral decision-making principles should be applied to similar rights to ensure that some rights are not penalized because they are less popular with the judiciary.
Finally, the recent turmoil reminds us that the first and second amendments interact in still other ways. One of the reasons people feel the urge to acquire the means to defend themselves now is because of the violence that can emerge from even protests approved by the first amendment, let alone illegal gatherings and riots. A strong second amendment therefore supplements a strong first amendment, since the protection of the natural right to speak, which includes protest, can make the exercise of the natural right to self-protection even more necessary.