Guns and Speech Technologies: How the Right to Bear Arms Affects Copyright Regulations of Speech Technologies

Abstract

This Essay examines the possible effect the Supreme Court's landmark Second Amendment ruling in Heller will have on future cases brought under the Free Press Clause. Based on the text and history of the Constitution, the connection between the two Clauses is undeniable, as the Heller Court itself repeatedly suggested. Only two provisions in the entire Constitution protect individual rights to a technology: the Second Amendment's right to bear "arms" and the Free Press Clause's right to the freedom of the "press," meaning the printing press. Both rights were viewed, moreover, as preexisting, natural rights to the Framing generation and were separately called the "palladium of liberty" during the Framing. Given this historical connection, courts should apply an approach similar to the one in Heller in interpreting the Free Press Clause. Just as the Heller Court held that banning handguns for the purpose of gun control violates the Second Amendment's core protection of the right to possess arms for self-defense, courts should find that banning speech technologies for the purpose of copyright control violates the Free Press Clause's core protection of the right to speech technologies for self-expression.

Keywords: Free Press, Second Amendment, First Amendment, Heller, Scalia, Stevens, Framers, original meaning, framing, speech technologies, Copyright Clause, copyright, history, constitutional law, broadcast flag, DMCA, anticircumvention, AHRA, Sony doctrine, guns, printing press

JEL Classification: K10, K12, K19, K20, K41, K42, L82, L86, O30, O34