Gun Rights Delayed Can Be Gun Rights Denied
2020 U. Ill. L. Rev. Online 302 (2020)
21 Pages Posted: 16 Oct 2020 Last revised: 12 Dec 2020
Date Written: October 1, 2020
Legitimate protests of police killings have led to greater levels of violence across the nation. As people have felt less secure, applications for gun licenses have surged. This essay reflects on this intertwining of the need for protest and the need for self-defense and thus the connection between the First and Second Amendments. It argues based on new evidence that James Madison, the key architect of the Constitution and the Bill of Rights, understood the First Amendment and Second Amendment similarly as protecting the individual's natural right to speak and the individual's natural right to self-defense respectively.
The similar nature of the First and Second Amendments support making doctrinal analogies between them. The First Amendment helps judges gauge the strength of the public interest justification needed to set a natural right aside. It also can bring to bear a comprehensive body of neutral First Amendment principles to help guide a Second Amendment law that is still in its infancy and to which judges may not be as well-disposed because of professional and social position.
This analogy can help answer a pressing Second Amendment issue arising from the unrest in the wake of legitimate protests. Some jurisdictions facing an upswing in violence have delayed the licenses for purchasing or carrying guns for more than month. While the First Amendment permits states to require licenses for demonstrations (for reasons of externalities that also underlie licensing requirements for guns), such licenses cannot be unreasonably delayed as that delay effectively undermines the right of free speech. Delays in licensing guns for self-defense during unrest would make the Second Amendment right of self-defense as ineffective as would delays in licensing for demonstrations to protest recent events.
Keywords: self-defense, protest, Second Amendment, First Amendment, natural right, gun licenses, free speech, unrest
JEL Classification: K10
Suggested Citation: Suggested Citation