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Joseph Blocher is Lanty L. Smith 67 Professor of Law at Duke Law School, where he co-directs the Center for Firearms Law. Eric Ruben is Assistant Professor of Law at SMU Dedman School of Law and a Brennan Center Fellow. Along with Darrell A.H. Miller of Duke Law School, they filed an amicus brief in support of neither side in New York State Rifle & Pistol Association v. City of New York.

In one sense, the stakes in New York State Rifle & Pistol Association v. City of New York couldnt be lower: The challenged regulation, a one-of-a-kind New York City restriction on transporting licensed handguns outside city limits, has already been repealed, arguably rendering the case moot. But when it comes to Second Amendment doctrine and methodology, the stakes are higher than theyve been in a decade. If the petitioners have their way, the Supreme Court could reject the mainstream approach for deciding Second Amendment questions in favor of a more radical test focused solely on text, history, and tradition and without consideration of contemporary realities of guns and gun violence. That would be a mistake.

The methodological debate animating this case began 10 years ago in District of Columbia v. Heller, in which the court held that the Second Amendment protects an individual right to keep and bear arms for private purposes like self-defense, and that the rightlike all constitutional rightsis subject to regulation. But, aside from listing some presumptively lawful measures, the court did not identify a doctrinal mechanism to evaluate those regulations (tiers of scrutiny, adequate alternatives, substantial burden, etc.), instead leaving the task to the lower courts.

In more than 1,000 cases since Heller, the doctrinal dust has begun to settle, and the outlines of constitutional rules and standards have become clearer. Of course, no constitutional right is governed by a single doctrinal test; even the canard that fundamental rights get strict scrutinyrepeated often by the petitioners in this caseis simply false. (Free speech claims, to take one obvious example, are governed by a wide range of tests.) But courts have nonetheless converged, with striking unanimity, on a general framework for adjudicating Second Amendment cases. That framework is frequently called the two-step test.

The first step is a threshold inquiry about whether the Second Amendment comes into play at all. As Heller makes clear, theres no scrutiny necessary for bans on possession by felons (with arguable and limited exceptions for as-applied challenges), or dangerous or unusual weapons such as machine guns, or weapons in sensitive places. For those regulations that do raise Second Amendment questions, courts proceed to the second step and apply something like a sliding scale of means-end scrutiny to evaluate the relationship between the state interest served by the regulation and the methods employed to further that interest. The more seriously a regulation interferes with the core interest of self-defense in the home, the more scrutiny it gets.

This framework is so basic as to be archetypalconstitutional rights adjudication frequently involves a threshold inquiry into the rights applicability, followed by some context-specific scrutiny of burden, purpose and tailoring. In the First Amendment context, for example, courts regularly ask whether an activitycampaign contributions, for examplecounts as speech before applying whatever doctrinal test is appropriate.

In short, as some constitutional law scholars have concluded, using the two-part framework means treating the right to keep and bear arms like the fundamental right that it is. The two-part framework, moreover, accommodates both historical analysis and consideration of contemporary costs and benefits; it includes both bright-line rules (prohibitions on laws that go too far) and standards. And the fact that it has been endorsed by every federal court of appeals is a resounding vote of confidence.

And yet the petitioners in this case contend that applying this common methodology converts the Second Amendment into a second-class right. Courts are too lenient with regard to the tailoring analysis, the argument goes, or misconstrue the historical element of the framework. They say the two-part test has been systematically misapplied.

Of course, mistakes are inevitable in any high-volume area of constitutional litigation, and some have undeniably occurred in Second Amendment cases. One court, for example, found that the amendment protected only those arms in existence at the nations foundingnot modern-day weapons like stun gunsa decision overturned by a unanimous Supreme Court. In truth, such mistakes have been relatively rare. Most Second Amendment cases are weak to begin with. This is partly because of Heller itself, which blessed as presumptively lawful various regulations that are often challenged, like felon-in-possession laws. Its also due to the fact that gun politics prevent most stringent regulations from being enacted in the first placethis is not a target-rich environment for gun-rights litigators. When a court errs in upholding an unconstitutional law, however, the typical way to correct the error is through appellate decisions. In this case, by contrast, the Supreme Court is being asked to forgo the typical approach, toss out the consensus methodology and supercharge the Second Amendment with a new set of rules.

The most prominent alternative to the two-part framework is the one articulated by then-judge Brett Kavanaugh in a dissent in the U.S. Court of Appeals for the District of Columbia Circuit: That gun regulations should not be evaluated using any level of scrutiny, but rather by looking to text, history and tradition alone.

Some advocates of this new test hope and expect that it would expand the right to keep and bear arms to some imagined historical ideal, immune from regulation. But that historical image is itself ahistorical: Gun rights and regulations have coexisted for centuries. The laws have changed, because guns and gun violence have changed, but from the very beginning weve had versions of safe-storage requirements, bans on dangerous and unusual weapons, restrictions on public carrying and even outright bans on public carry including in supposed gun havens like Dodge City and Tombstone. Guns are a part of American history, but so, too, is gun regulation. For reference, there are more than 1,500 entries in Dukes Repository of Historical Gun Laws, a searchable, non-comprehensive database of firearms regulations that predate the federal governments first major intervention into the field in 1934. A properly applied historical test should uphold a lot of gun regulation.

The main problem with relying solely on text, history and tradition, however, is that it doesnt provide useful guidance for modern-day regulations that respond to modern-day gun violence. The text alone cant tell you whether a machine gun is an arm or whether convicted felons are among the People the Second Amendment protects. The 27 words of the amendment are silent on many questions, and history and tradition dont speak with one voicethere were and are significant regional differences in approaches to gun regulation, as well as divisions between urban and rural areas.

Perhaps in some extreme cases (a total ban on public carry, for example), text, history and tradition would provide relatively clear rules. But for most standard forms of modern gun regulationrestrictive licensing schemes for public carry, for example, or prohibitions on high-capacity magazines or on gun possession by people convicted of domestic violenceall of the work would be done by analogical reasoning. Judges would have to decide for themselves whether certain modern guns or gun laws are relevantly similar to laws from 150 or 200 years ago.

How would such a test of judicial analogies work in practice? Is a rocket launcher like a musket, because you can lift it, or is it like a cannon, because its so powerful? How is an AR-15 like a musket? Do you compare barrel lengths? Muzzle velocity? Relative deadliness? Such questions place a lot of weight on judges own, perhaps unexamined intuitions. In this way, the test of text, history and tradition simply cloaks judicial discretion in an air of objectivity.

In practice, the supposedly historical inquiry eventually comes back, in a roundabout and less transparent way, to the same kinds of questions that are front and center for means-end scrutiny. Good analogical reasoning requires finding relevant similarities, and whats most relevant about guns is their function, especially their usefulness for what Heller says is the core lawful purpose of self-defense. If automatic weapons are prohibited, but semi-automatic handguns are permitted, does that materially interfere with peoples ability to defend themselves in their homes? If so, has the government shown that the prohibition is appropriately tailored to a sufficiently strong interest? The two-part framework makes those questions explicit, rather than laundering them through a subjective form of historical formalism.

Text, history and tradition absolutely matter in the context of the Second Amendment, just as in other areas of constitutional law. But to make them the sole measure of constitutionality wouldnt give much useful guidance in hard cases, and would invite a lot of unarticulated, potentially hidden judicial discretion and power. Second Amendment scholar Nelson Lund puts the point well: Pretending to find the answers in history and tradition will encourage either covert judicial policymaking, which is just what reliance on history and tradition is supposed to prevent, or ill-supported historical stories in defense of results that could honestly and responsibly be justified through normal means-end scrutiny.

The Supreme Court is being asked in this case to reject a doctrinal framework unanimously endorsed by the federal courts of appeals and widely used in constitutional-rights jurisprudence, and to adopt instead a brand-new doctrinal test that would almost certainly invite broad judicial discretion. We hope that the court declines that invitation.

Posted in New York State Rifle & Pistol Association Inc. v. City of New York, New York, Symposium before oral argument in New York State Rifle & Pistol Association v. City of New York, Featured

Recommended Citation: Joseph Blocher and Eric Ruben, Symposium: Disrupting the consensus on Second Amendment doctrine would be a mistake, SCOTUSblog (Nov. 20, 2019, 10:36 AM), https://www.scotusblog.com/2019/11/symposium-disrupting-the-consensus-on-second-amendment-doctrine-would-be-a-mistake/

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Symposium: Disrupting the consensus on Second Amendment doctrine would be a mistake - SCOTUSblog

The First Amendment is the first amendment in the Bill of Rights, which includes the original 10 amendments drafted immediately after the Constitution of the United States was ratified in 1788. Here, amendments are changes or additions to the Constitution that arent part of the original document.

In 1787, members of the Constitutional Convention gathered in Philadelphia to revise the founding document of the country, the Articles of Confederation. They decided to create a new one instead, and by September, theyd drafted the Constitution. Getting the new document approved, however, was another story. Many opposed this new Constitution because it didnt specify the rights of the people. The Constitution was only passed after Congress promised to add a list of rights afterwards.

Its this proposed list of rightsthe Bill of Rights, ratified in 1791that yielded the First Amendment. Compared to some other amendments, its quite short. The full text reads:

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.

The freedoms this amendment protectsreligion, speech and the press, assembly, and petitionare called the First Amendment freedoms or rights, both officially and colloquially invoked in the US.

Due to its brevity and ambiguity, issues regarding the interpretation of the First Amendment have been perennial points of debate throughout American history. The specific application of these rights, like other rights, has been a matter often judged by the Supreme Court. For instance, cases have determined that the First Amendments free speech clause doesnt protect fighting words, which is defined as speech intended to cause injury or breach of the peace, and that school libraries cant remove books because school officials disagree with their content.

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What Does First Amendment Mean? | Politics by Dictionary.com

The first, and most well-known amendment of the constitution reads:

In 1789, James Madison nicknamed "the father of the Constitution" proposed 12 amendments that ultimately became the 10 amendments that make up the U.S. Bill of Rights. Madison was unquestionably the person who wrote the First Amendment in this respect.But this doesn't mean he was the one who came up with the idea. Several factors complicate his status as an author:

While Madison unquestionably wrote the First Amendment, it would be a bit of a stretch to suggest that it was solely his idea or to give him the entire credit for it. His model for a constitutional amendment protecting free expression and freedom of conscience wasn't particularly original and its purpose was merely to honor his mentor. If there is anything outstanding about James Madison's role in the creation of the amendment it was that someone of his position was able tostand up and call for these protections to be permanently written into the U.S. Constitution.

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The History of the First Amendment - ThoughtCo

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Thirty-three amendments to the United States Constitution have been proposed by the United States Congress and sent to the states for ratification since the Constitution was put into operation on March 4, 1789. Twenty-seven of these, having been ratified by the requisite number of states (38, since 1959), are part of the Constitution. The first ten amendments were adopted and ratified simultaneously and are known collectively as the Bill of Rights. Six amendments adopted by Congress and sent to the states have not been ratified by the required number of states. Four of these amendments are still pending, one is closed and has failed by its own terms, and one is closed and has failed by the terms of the resolution proposing it. All 33 amendments are listed and detailed in the tables below.

Article Five of the United States Constitution details the two-step process for amending the nation's frame of government. Amendments must be properly proposed and ratified before becoming operative. This process was designed to strike a balance between the excesses of constant change and inflexibility.[1]

An amendment may be proposed and sent to the states for ratification by either:

As of 2019, the convention option has never been used. Convening one would (as of 1959) require action by the legislatures of 34 states.[4]

To become part of the Constitution, an amendment must be ratified by either (as determined by Congress):

The only amendment to be ratified through the state convention method thus far is the Twenty-first Amendment in 1933. That amendment is also the only one that explicitly repeals an earlier one, the Eighteenth Amendment (ratified in 1919).[5]

When a constitutional amendment is sent to the states for ratification, the Archivist of the United States is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C.106b.[6] Then, upon being properly ratified, the archivist issues a certificate proclaiming that an amendment has become an operative part of the Constitution.[2]

Beginning in the early 20th century, Congress has usually, but not always, stipulated that an amendment must be ratified by the required number of states within seven years from the date of its submission to the states in order to become part of the Constitution. Congress' authority to set a ratification deadline was affirmed in 1939 by the United States Supreme Court in Coleman v. Miller (307 U.S. 433).[3]

Approximately 11,770 proposals to amend the Constitution have been introduced in Congress since 1789 (as of January 3, 2019).[3][7] Collectively, members of the House and Senate typically propose around 200 amendments during each twoyear term of Congress.[8] Proposals have covered numerous topics; but none made in recent decades have become part of the Constitution. Historically, most died in the congressional committees to which they were assigned. Since 1999, only about 20 proposed amendments have received a vote by either the full House or Senate. The last time a proposal gained the necessary two-thirds support in both the House and the Senate for submission to the states was the District of Columbia Voting Rights Amendment in 1978. Only 16 states had ratified it when the seven-year time limit expired.[9]

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List of amendments to the United States Constitution

Recently there have been instances popping up all over social media regarding First Amendment Audits of law enforcement and government buildings and practices. The entire focus of these audits is to judge the proper (or often improper) response of law enforcement to the presence of a cameraman. The hopes of some auditors is to have a poor contact with law enforcement, resulting in a violation of their 4th Amendment rights and or a bad arrest. This obviously places the officer and agency in line for civil damages and embarrassing online videos. This also leads to interesting and valuable training opportunities!

A review of many of the posted audit videos shows us, extremely well trained and professional law enforcement officers acting what I can only describe as childish when confronted with an audit and a camera. From us blocking their view, following them, challenging them for ID, or even worse, pulling out our own cell phone and taking pictures and video of them. What is the point? The videos are never taken well by the public audience, and the comments; I wont even mention them.

I know, some of you may be saying But terrorists, they scout locations and police stations are a target. I agree. They certainly do. When was the last time you found a terrorist standing in wide open view, in public, blatantly videotaping a public building with obvious disregard for the police driving around? Probably never. If they were going to scout a location, they would do it and you likely would never know.

Honestly, as a law enforcement professional for the past twenty years, I have seen my share of video cameras, and baiting of law enforcement. At no time have I felt a threat when someone with a camera was filming me, my police station, or anything to do with us as law enforcement. Remember, the audits are carefully planned to remain in a place that they can legally be, and there is no law about recording activity or buildings from a public place. They are well within their rights to do so, and from my experience, the best response to an audit roaming around your police station public areas is to ignore them. They eventually lose interest and move on to somewhere they can make headlines.

Consider the audits as a reminder that we do serve the public, and in such, we should adjust our policing and our methods to suit the situation. We shouldnt be carrying heavy stones over glass bridges as law enforcement.

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First Amendment Audits and How to Respond California ...