The First Amendment Guide to the Second Amendment

Back in 1995, the Tennessee Law Review published a symposium issue on the Second Amendment and firearms policy. That symposium was probably the most influential law review symposium ever published on the topic. (More on that issue, below.) This year, the Tennessee Law Review is doing another Second Amendment symposium. My contribution to the forthcoming issue is The First Amendment Guide to the Second Amendment.

As the article explains, post-Heller courts have frequently looked to the First Amendment for guidance on Second Amendment questions. This is sensible, because since the Supreme Court began taking the First Amendment seriously about 75 years ago, a rich body of precedent has been developed. The First and Second Amendments both safeguard natural, pre-existing human rights, whereas Amendments 4-8 are mainly controls on particular government processes, and Amendments 9-10 are interpretive rules.

Part I of the article explains how the Supreme Court in Heller and McDonald used First Amendment tools and analogies to help resolve Second Amendment issues. This was consistent with several earlier Supreme Court cases, which treated the First and Second Amendments in pari materia.

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