The Supreme Court rules 2nd Amendment right to “keep + bear arms” — why should Free Speech supporters and technology companies be happy?

June 26, 2008

News: The Supreme Court announced its 5-4 decision today in the gun-control case in District of Columbia v. Heller, declaring the DC gun control law banning handguns unconstitutional. You can download the opinion here. Justice Scalia wrote the majority opinion and applied a close textual analysis of the Second Amendment, along with a review of the history of various uses of the words “keep,” “bear” and “arms” in England, state constitutions, and contemporaneous writings.

Analysis: Here are my initial reactions. First, it is amazing that this is the first time in 217 years that the Supreme Court has definitively ruled on the Second Amendment right. That’s a very long time of silence. Second, I’m not an expert in gun control, so I can’t speak to those issues. But for technology companies dealing with speech-related technologies, the Court’s precedent on guns may actually be very good for speech technologies.

As I’ve said in the past, there are only 2 provisions of the Constitution that deal with technologies: (1) the Second Amendment’s “arms” and (2) the First Amendment’s “press,” referring to the printing press. If the Court interprets the Free Press clause in a parallel manner to the way it has interpreted the Second Amendment, it is very possible that Congress’s present or future attempts to regulate speech technologies under copyright law could be unconstitutional.

My theory is laid out in detail in my article “Freedom of the Press 2.0,” an early draft of which you can find online.

UPDATE: A number of people have read this post and may be skeptical about the connection. I’ve written a few more words about the historical connection between guns + the printing press, between the 2nd Amendment and the 1st, on a subsequent post you can find here. Although the Framers were dealing with two very different technologies (guns + press), the origin of and debate over both clauses followed a strikingly similar path.

And I should add Justice Scalia himself cites (p. 29) to a Massachusetts supreme judical court opinion and a 1868 con law treatise (p. 46) that make the direct analogy to the freedom of the printing press and the right to bear arms:

The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.”

The [2nd Amendment] clause is analogous to the one securing the freedom of speech and of the press.”

And then Justice Scalia himself draws the analogy to the First Amendment, although only the free speech clause (free press is often overlooked):

The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different.” (p. 63)

UPDATE: I’ve just written an Essay on this topic. Click here to download a copy.