Noah Feldman is a Harvard law professor and a prolific author. In a May article on a court striking down the District of Columbia’s concealed carry prohibition, Feldman somewhat grudgingly, but honestly, explained why Second Amendment supporters keep winning in the courts.
With that, the court embraced the old slogan that if you outlaw gun ownership, only criminals will have guns. The court then held that the regulation wasn’t narrowly tailored because the city would have to prove that its scheme made people safer than any less restrictive alternative. And it said it was “skeptical” that such proof could ever be possible. The regulation would only be narrowly tailored, he said, if it were “targeted at keeping guns away from people who are likely to misuse them or situations where they are likely to be misused.”
Then Feldman included this bombshell (for someone on the left) statement:
City lawyers tried to argue that the regulation simply restricted the time, place and manner of bearing arms, limitations that are permissible even when applied to the free-speech protections of the First Amendment. But the court replied that the analogy was flawed — which of course it is. A law that prohibited you from speaking while on the street but let me speak while at home wouldn’t be permissible. The analogy to free speech is one that belongs to advocates of gun rights, not to the other side.
The U.S. Court of Appeals for the D.C. Circuit will have to review this decision. But it’s worth noting that, astonishing as the reasoning sounds, it makes logical legal sense once the right to bear arms is treated as a fundamental right comparable to free speech.
Feldman is now back again, this time in the aftermath of a ruling holding allowing restrictions on posting plans for 3D -printed weapons online.
Although the impulse to block the easy creation of untraceable weapons is admirable, the court got it wrong. The First Amendment can’t tolerate a prohibition on publishing unclassified information – even if the information is potentially harmful.
I admire Feldman’s willingness to apply logic to the subject at hand, even though he dislikes the outcome. You don;t see that very often in the fight over the Second Amendment. Feldman’s logic is impeccable.
What’s more, Congress in its wisdom hasn’t prohibited Americans from making their own AR-15 parts at home. The fact that the conduct is legal is an overwhelming reason to conclude that directions on how to do it can’t be prohibited without violating freedom of speech.
Judge Edith Jones said as much in dissent. I don’t agree with Jones, a Ronald Reagan appointee, that often, but when you’re right, you’re right. She pointed out that the panel never squarely addressed the question of Defense Distributed’s likelihood of success on the merits in upcoming litigation.
When free-speech rights are in the balance, a long delay in publication is as good as the denial of the First Amendment. Defense Distributed has already been prohibited from speaking for three years.
I disagree with Feldman a fair amount. He has written, for example, that the interpretation of the Second Amendment as an individual right started with the Heller case in 2008. That’s clearly incorrect. But writing about the First Amendment, and the implications in this case, he gets it right.
Hats off to Mr. Feldman.
©2016 by Dean Weingarten: Permission to share is granted when this notice is included.