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

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