80 Pages Posted: 19 Mar 2009 Last revised: 27 Dec 2014
Date Written: March 15, 2009
In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for “future evaluation.” This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment right to keep and bear arms for self-defense the same as the right to own and view adult obscenity under the First Amendment — a robust right in the home, subject to near-plenary restriction by elected government everywhere else. This Article’s proposal to treat guns like smut is sure to stir controversy. But it is grounded in solid methods of constitutional analysis. The Court in Heller sent unmistakable signals that the First and Second Amendments are cousins and may be subject to similar limitations. As Justice Scalia noted, the First Amendment excludes from its protection certain categories of speech: “obscenity, libel, and disclosure of state secrets.” The Second Amendment may be “no different,” and almost certainly excludes from its protection certain categories of “bearing” and certain categories of “arms.” Moreover, the “home-bound” approach to the Second Amendment rationalizes the disparate norms that animate the Court’s privacy jurisprudence. It situates the Second Amendment within tradition and doctrine that accord constitutional weight to a spatial and conceptual distinction between the home and the public sphere. Finally, this proposal has the benefit of simplicity: The Court has already marked boundaries for an individual right to adult obscenity in the home. Those boundaries are surprisingly applicable to the individual right to bear arms, and far easier to administer. While this proposal will not resolve all issues of Second Amendment scope, its prudential and practical merits deserve serious consideration as part of post-Heller discourse on the Second Amendment.
Keywords: Heller, Second Amendment, obscenity, pornography, First Amendment, Fourth Amendment, home, constitution, jurisprudence, textualism, originialism, standards of review, guns, firearms
Suggested Citation: Suggested Citation
Miller, Darrell A. H., Guns as Smut: Defending the Home-Bound Second Amendment (March 15, 2009). Columbia Law Review, Vol. 109, p. 1278, 2009; U of Cincinnati Public Law Research Paper No. 08-20. Available at SSRN: https://ssrn.com/abstract=1364759