Justifying Perceptions in First and Second Amendment Doctrine

Abstract

Public perceptions often motivate policymakers. But what is the role of perceptions in defending regulations challenged as violating constitutional rights? This article explores how First and Second Amendment doctrine answer that question.

First Amendment free speech doctrine deploys categorical rules and balancing tests to determine the constitutionality of speech restrictions seeking to shape various perceptions. The resulting discrepancies, the article contends, can be explained by motive-based theories of First Amendment doctrine.

In the Second Amendment context, how to handle perception-based regulations remains an open question. Some courts have held that firearm restrictions can pass muster if they preserve the public’s perception of safety from armed violence. That rationale, however, would likely be insufficient to justify a speech restriction, and thus cuts against the trend of importing First Amendment doctrine to implement the Second Amendment right. The article analyzes evolving Second Amendment doctrine, historical weapon regulations, and the distinct values and costs associated with the right to keep and bear arms, concluding that perceived safety has a more legitimate regulatory role in the firearm context than speech context.

The article concludes by assessing some practical challenges that will arise when the perception of safety is put forth as a justification for a firearm restriction. Those challenges are surmountable, but could limit when perceived safety is accepted as a constitutionally sufficient rationale in Second Amendment cases.

Keywords: First Amendment, Second Amendment, freedom of speech, keep and bear arms, concealed carry, Heller