The Vigorous Exercise of the First Amendment Can Make Second Amendment Rights More Necessary

Virginia gun owner militia open carry

Courtesy Jeff Hulbert

Interpreting the Second Amendment by analogy to the First has the specific advantage of importing a well-reticulated body of First Amendment principles to help guide a Second Amendment law still in its infancy. But even more importantly, reference to the First Amendment also encourages neutral treatment of the Second Amendment, because judges as a class are likely more sympathetic to the natural right of expression than to the natural right of self-defense.

Judges are uniformly lawyers who make their living by words: the natural right to their opinions is a source of their livelihood. While some may own guns, there is no occupational reason to expect that they will have such a supportive disposition toward the natural right of self-defense.

Indeed, as Justice Antonin Scalia noted in another context: “[W]e federal judges live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives.”

Thus, considering analogies to the First Amendment helps the judiciary appreciate the full weight of what protection a natural right deserves in a context with which they are more familiar and more apt to sympathize. Neutral principles of adjudication should be applied to similar rights to make sure that some rights are not disfavored because they are less popular with the judiciary.

Finally, the recent unrest reminds us that the First and Second Amendments interact in yet another way. One of the reasons people feel the urge to acquire the means to defend themselves now is the violence that may emerge from even protests authorized by the First Amendment, to say nothing of unlawful assemblies and riots. Thus, a vigorous Second Amendment complements a vigorous First Amendment because protecting the natural right of speech, which includes protest, may make the exercise of the natural right of self-protection even more necessary.

– John O. McGinnis in Gun Rights Delayed Are Gun Rights Denied

comments

  1. avatar GS650G says:

    The 2nd makes the 1st possible.

    1. avatar The Crimson Pirate says:

      The 1st makes the 2nd possible.

      1. avatar The Crimson Pirate says:

        I see you are trying to bask in my greatness by impersonating me again. Too bad you will never be successful.

        1. avatar GS650G says:

          Are you saying he/you was wrong? Or is it a “They/We” thing?

        2. avatar GS650G says:

          When your handle gets stolen you’ve gotten under their skin at last.

      2. avatar Cloudbuster says:

        Or maybe they go hand in hand, each impossible without the other, like man and woman.

        1. avatar AC says:

          The First Amendment is a Right, the Second Amendment is a privilege… and we only have ourselves to blame for that. Consider that although some may try to silence you, you do in fact still have the Right to speak freely in the public square and there is no special permit required or a fee that must be paid to the government to do so. And so the Right to free speech still exists in America. However, can you say the same thing about a Right to keep and bear arms when every aspect of it requires special permission and licensing from the government as well as the payment of fees, and when also in a number of instances the government can restrict and even deny you the ability to enjoy the freedom of being able to arm yourself as you might deem necessary?

          I’ve heard it said that, real power is not given to you, real power you take. And this government has certainly taken more and more power than it was ever entitled to. The government acts outside the scope of its constitutional authority, but we the people remain silent. We should never forget that our Constitution was not created to put power into the hands of government, but rather, our Constitution was created to restrict the power and the authority of the government and to place the ultimate power in the hands of the people.

        2. avatar Seentoomuch says:

          AC, you make a very good point. Why have we let the government restrict one of our Constitutional Rights to the point where they dictate to us? Maybe it’s time for a new political party in this country. We could call it the Constitutional Party. The real problem however is the people in our country. They are so divided and uninformed that getting them to understand how close we are to losing this Democratic Republic is nearly impossible.

      3. avatar Ron says:

        The first amendment is under just as much, if not more attack by the left then the second right now.

        Remember, gun confiscations are just the beginning of their final solution.

  2. avatar Chris T in KY says:

    The white Jewish lawyers of the ACLU have publicly disagreed with this position. It is why they supported the Mulford Act and helped to write it. Of course they also supported the Klu Klux Klan marching in black neighborhoods while carrying guns. These lawyers are also well known for being Hypocrites when it comes to the law.

    Bearing arms is our Birthright as American citizens. It was at the Crux of the matter of the issue of slavery in the United States. When the Supreme Court said

    “if blacks were citizens of the United States they would be able to possess weapons, and travel wherever they please with them”.

    Stop using the term “open carry”. And use the term “to bear arms” in your arguments. Because that’s exactly what the Second Amendment recognizes we have a right to do.

    And a fixed bayonet on the end of a long gun really helps to get the point across. Because the Second Amendment is not about guns. It’s about Arms. The right to keep AND bear arms.

    1. avatar Dude says:

      You can’t even get a carry permit unless you’re a resident of some states. It seems like that could be challenged now with the current make up of the supreme court. And guys, it isn’t always as simple as don’t go to that state.

    2. avatar Green Mtn. Boy says:

      You nailed it,”Keep and Bear” as I fail to find the words Open or Concealed anywhere in the 2 nd. ,there is only to Bear,no other permit needed.

      1. avatar Chris T in KY says:

        I suspect that many on TTAG and the rest of the gun Community made the mistake of using the language of the anti civil rights gun grabbers.

        There are individuals who boast about having more guns than I do. On TTAG. And they don’t support the right to bear arms.

        Stop using the term open carry. You can bear arms concealed. Or you can bear arms openly.

        An openly armed Society is a much more polite Society.

        1. avatar Dude says:

          I understand the sentiment, but we can’t even get simple things like suppressors without a long involved process or carry reciprocity or a straight answer on what the ATF considers legal. New York says to expect a MINIMUM of a four month wait for a permit AND you must be a state resident AND you must prove that you need it, etc. Setting aside whether it’s Constitutional in the first place, we all know it wouldn’t take them over four months to approve that. They’re making the process a punishment to discourage people. Something like that should be an easy win with a conservative court, no?

        2. avatar SAFEupstateFML says:

          Closer to 6 months for NY (grumble)

    3. avatar Seentoomuch says:

      People would be more civil to their fellow man if more people walked around armed.

  3. avatar Rusty - Always Carry - Chains says:

    TTAG, you need to clear out the trolls. The comments section use to be interesting and thought provoking, but is becoming an unreadable dung heap punctuated with those ridiculous emoticons. Your software should allow you to ban by mac address.

    1. avatar former water walker says:

      Plenty of trolls since I’ve been here for nearly 7 years Rusty. The quality of idiots has dropped precipitously in that time probably from Soros $…and I don’t(& won’t) pay to be here. My opinion is it’s been far worse in years past. To me it seems to be mostly unemployed dipshites trolling now. A bunch of pro-gun fakebook friend’s are fleeing to MeWe and/or Parler…dunno why they think it’s better as MeWe has been around for some 8 year’s. Parler is unproven. Peace out…

    2. avatar Cloudbuster says:

      Your software should allow you to ban by mac address.

      MAC addresses are not transmitted past the first hop on the network. For most users, that means the MAC address is stripped right at their router. In turn, their router’s MAC address is stripped at the ISPs’ router, and so on. MAC addresses are only used on the local network segment.

      Banning IP addresses is equally useless due to the ubiquitous use of VPNs.

    3. avatar Thin Blue Malarkey says:

      Rusty – Always Carry – Chains, you’re calling for a ban on free speech in the comments to a column equating the First Amendment to the Second Amendment? Maybe you should try selling your idea to Facebook or Twitter.

      1. avatar Geoff "I'm getting too old for this shit" PR says:

        Speech and ideas are one thing, but commenting just to hurl a childish insult isn’t.

        That’s where TTAG has been devolving over the past few months…

  4. avatar Dude says:

    I’m just going to leave this here…
    https://twitter.com/Redistrict/status/1329986042527698945

    Biggest pro-Trump margin swings vs. 2016 in the U.S. so far (excluding NY, where there are still over a million absentees left to count):

    1. Hawaii +2.7%
    2. Utah +2.4%
    2. Florida +2.2%
    3. California +0.8%
    4. Arkansas +0.7%

    Trump over performed in the two most left wing states in the country.
    Trump increased his support among minorities, expanding his electorate.
    Republican House election victories all over the country.
    Republican state election victories.
    Trump still loses to a guy that barely came out of his house and bragged about *actually* doing what they accused Trump of thinking about doing, and impeached him for it.
    We’ve never seen anything like this before.

    1. avatar BOBO says:

      WELL when you have NEARLY EVERY SINGLE FORM OF MEDIA fighting Trump and COVERING up Senile Joes mistakes gaff and SONS evil vile deeds

      I am surprised Trump did this well with all the low intel sheep in this nation

    2. avatar Miner49er says:

      “Former New Jersey Gov. Chris Christie said Trump has failed to provide any evidence of fraud, that his legal team was in shambles and that it’s time to put the country first.
      “If you have got the evidence of fraud, present it,” Christie said on ABC, where he is a contributor. He decried efforts by the President’s lawyers to smear Republican governors who have not gone along with the President’s false claims of voter malfeasance.

      “Quite frankly, the conduct of the President’s legal team has been a national embarrassment,” he said, singling out Trump attorney Sidney Powell’s accusations against Georgia GOP Gov. Brian Kemp.“

      1. avatar Dude says:

        You’re the straw man argument king Miner. Nothing was said about the legal team or presenting evidence of fraud. I laid out some facts and noted that we’ve never seen anything like this before.

  5. avatar Thin Blue Malarkey says:

    “Reticulated”? Does he mean the purse or the python? Or that the principles go around handing out business cards at conventions?

  6. avatar adverse6 says:

    I own a firearm because I don’t trust other people with a firearm.

  7. avatar Seentoomuch says:

    Open carry is better than carrying concealed because there would be no surprises and no excuses for bad behavior. Society prefers concealed carry because open carry causes some people to go apoplectic at the very sight of a firearm. There is something very devious about concealed carry. Not knowing who is armed can be a great deterrent also. I think that a person should be allowed to decide how a firearm is carried and under what circumstances.

  8. avatar Ralph says:

    These days, when the exercise of the right to speak is controlled by the treacherous oligarchs who own America, 1A has limited value.

    1A protects our right to debate, have meeting and generally accomplish nothing — which is why courts protect 1A. It’s useless, but it makes us feel like we have some power over our own lives. It’s legal opium.

    OTOH, 2A goes a long way toward preserving my right to walk down the street, be secure in my own home, and safeguard my possessions, friends and family. 2A has teeth. Which is why the oligarchy will do anything they can to destroy it.

    1. avatar Geoff "I'm getting too old for this shit" PR says:

      “These days, when the exercise of the right to speak is controlled by the treacherous oligarchs who own America, 1A has limited value.”

      Ralph – Are you aware a star lawyer for the ACLU now wants to ban and burn books?

      I shit you not – For the offense of saying that maybe changing a child’s sex by hormones or surgery may not be a good idea :

      “Chase Strangio, the ACLU’s Deputy Director for Transgender Justice, tweeted that the “book is a dangerous polemic” and that “[s]topping the circulation of this book and [others like it] is 100% a hill I will die on.” This breaks with the ACLU’s longstanding opposition to censoring speech. And as journalist Glenn Greenwald pointed out: “the ACLU is being pulled and weighted down by the same censorious trends currently plaguing academia, the corporate world and … news organizations.”

      https://www.adflegal.org/blog/irreversible-damage-censorship

      Here’s a WSJ story that dives deeper :

      https://www.wsj.com/articles/does-the-aclu-want-to-ban-my-book-11605475898

      1. avatar Ralph says:

        “Ralph – Are you aware a star lawyer for the ACLU now wants to ban and burn books?”

        he doesn’t want to burn books. He wants to burn us. Books are merely kindling.

      2. avatar Phil Wilson says:

        The ACLU gave up any moral standing when they decided to stop defending free speech for all and transitioned to defending free speech only for some. If they were ever anything besides just another leftist front group, those days are gone.

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