Ted Cruz and the First Amendment Analogy

Ted Cruz, the freshman senator from Texas, sharpened his Tea Party credentials and pugnacious reputation in a Senate hearing on a bill to ban "assault" weapons.    Sen. Cruz asked the bill's sponsor, Sen. Dianne Feinstein (D-Cal.) if she would have the same attitude about a bill to trim rights under the First or Fourth amendments.   He queried his colleague:

The question that I would pose to the senior senator from California is would she deem it consistent with the Bill of Rights for Congress to engage in the same endeavor that we are contemplating doing with the Second Amendment in the context of the First or Fourth Amendment, namely, would she consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights?   Likewise, would she think that the Fourth Amendment’s protection against searches and seizures could properly apply only to the following specified individuals and not to the individuals that Congress has deemed outside the protection of the Bill of Rights?

Rather than answering the challenge directly, Sen. Feinstein basically told the young whippersnapper that she had been studying the Constitution since he was in diapers and did not need to be lectured about its terms.    While Sen. Feinstein did not answer the question, I think it is reasonable to examine whether outlawing ownership of certain weapons would be as offensive to the Second Amendment as banning certain books would be under the First Amendment.   As somewhat of an absolutist about the First Amendment, I cringe at the thought of book banning.   However, as I will argue below, I think Sen. Cruz is mixing apples and oranges.   (I will save the Fourth Amendment for someone else to analyze).

In their text, both the First and Second Amendments are absolute within their scope.  They state:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

---

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Note the use of the absolute terms "no law" in the First Amendment and "shall not" in the Second.  The Second Amendment is arguably broader, since it protects the people's right to keep and bear arms, while the First Amendment is a restriction on the power of Congress (and through the Fourteenth Amendment state and local governments) to abridge freedom of speech or the press.

The absolute nature of these protections has been affirmed in the recent Supreme Court decisions in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), which held that a political movie could not be banned from being shown during the run-up to an election based on its corporate funding and  District of Columbia v. Heller, 554 U.S. 570 (2008), which held that local governments could not ban personal ownership of firearms.    While both decisions were controversial, I think they were each properly decided.

Nevertheless, despite the absolute nature of the protections granted under the First Amendment, it does not allow all manners of expression under all circumstances.   For example, the First Amendment does not allow:

• Shouting fire in a crowded theater, Schenck v. United States, 249 U.S. 47 (1919)
• Perjury, defamation and fraud, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964),
• Child pornography, New York v. Ferber, 458 U.S. 747 (1982)
• Speech advocating specific acts aimed at the violent overthrow of the government,  Brandenburg v. Ohio, 395 U.S. 444 (1969)

Speech has also been found to be subject to reasonable limits on its time, place and manner.  For example, it is constitutional to make it a crime for a person to leave a designated free speech zone and enter into in an area  where a person protected by the Secret Service will be temporarily visiting.   United States v. Bursey, 416 F.3d 301 (2005).    It was also permissible to punish a student for unfurling a banner stating "Bong Hits for Jesus" at a school function (although it did not take place on school grounds).  Morse v. Frederick, 551 U.S. 393 (2007)

If we substitute the word "speech" for "books," then it is clear that there is some speech which falls outside of the First Amendment, although that category is narrow.   Thus, Sen. Cruz's analogy fails because the First Amendment does not protect all speech at all times.

Turning to the specific language of the Second Amendment, it protects the individual right to "keep and bear arms."   Can there be a generalized right to "keep and bear arms" even if every specific permutation of keeping or bearing arms is not protected?   I think so.   I don't think that even the most ardent defender of the Second Amendment would support the right to a private person to construct and sell nuclear weapons.    By the same token, I think that bullets dipped in toxic waste could be banned on environmental grounds.   

If there are limits to the Second Amendment, just as there are with the First, the question should be which restrictions are permissible.   The way that Sen. Cruz formulated his query assumes that any Congressional legislation specifying books within the First Amendment would be arbitrary and random, such as, for example, banning books that referred to Texas A & M University.   By extension, any restriction on types of weaponry available to the general public would be similarly arbitrary and random.   However, that is not the case.   Just as there can be narrow limitations on the protection of the First Amendment, so too can there be some restrictions on what falls within the right to "keep and bear arms."   

One important distinction in my mind is that the types of speech which can hurt another person are limited, arms are inherently dangerous.   This raises a paradox.   The First Amendment protects something which is rarely dangerous, while the Second Amendment protects something which is uniformly so.   My personal view is that the Constitution should distinguish between those arms which are uniquely suited to personal use and those which should be restricted to governments only.   Just as individuals should not be allowed to possess nuclear weapons, neither should they be allowed to own functioning aircraft carriers, tanks or artillery.   There are just some weapons which are too dangerous for individual use.   I think that it would be difficult to justify banning an AR-15, while a .50 caliber machine gun should clearly fall on the prohibited list.

In my view, the question is not whether the Second Amendment permits something which is dangerous--it unequivocally does--but rather, what types of arms are properly limited to governments and which fall within the individual right to keep and bear arms.     In my view, Sen. Cruz's hectoring obscured this critical distinction.    However, I don't think Sen. Feinstein's response was any more illuminating.