Applying 1A to 2A

/ hsoi

David Kopel, an adjunct professor of advanced Constitutional law, has published a paper examining how SCOTUS has used the First Amendment for guidance on Second Amendment questions.

You can read a summary/overview here.

The full paper can be found here. Here’s the abstract

As described in Part I of this article, the Supreme Court has strongly indicated that First Amendment tools should be employed to help resolve Second Amendment issues. Before District of Columbia v. Heller, several Supreme Court cases suggested that the First and Second Amendments should be interpreted in the same manner. Heller and McDonald v. City of Chicago applied this approach, using First Amendment analogies to resolve many Second Amendment questions.

Part II of this Article details how influential lower court decisions have followed (or misapplied) the Supreme Court’s teaching. Of course, precise First Amendment rules cannot necessarily be applied verbatim to the Second Amendment. Part III outlines some general First Amendment principles that are also valid for the Second Amendment. Finally, Part IV looks at how several First Amendment doctrines can be used in Second Amendment cases, showing that some, but not all, First Amendment doctrines can readily fit into Second Amendment jurisprudence.

I have not yet had a chance to read the full paper, but I did want to comment on a related matter I was thinking about prior to learning of this paper.

The notion of “if it saves just one life, then it’s worth it”.

I was reading this article and it trotted out the “just one life is worth it” trope. Yes, the article is from the NRA-ILA so it has an expected slant, but it got me thinking.

Is this really valid reasoning?

Can we apply this reasoning to other Constitutionally protected rights, such as those listed in the First Amendment? And would those so willing to apply this trope to 2A be willing to apply it to 1A?

Let’s consider cyberbullying. Consider the numerous children that have committed suicide or violently “acted out” as a result of cyberbullying. How can we prevent cyberbullying? Well, it does seem that banning computers or banning the Internet is never brought up as a solution, but if there was no access to computers or the Internet — if they were banned — then certainly “cyber” would cease to exist and so too would cyberbullying.

If it saves just one life, isn’t that worth it?

Isn’t curtailing free religion, free speech, free press, free association — because it could save just one life — worth it?

Well, isn’t it worth it?

9 thoughts on “Applying 1A to 2A”

  1. This made my head hurt. Ok, more specifically the comments at the bottom of the Washington Compost story made my head hurt.

    Perhaps I’m dim. I do not see a link between the concepts of 1A as applied by SCOTUS to 2A. At least I don’t see clear links.

    Now, the next time I hear some whiny-baby say “If it saves one life” I’ll probably be cleaning my brains up off the floor post head-explody event.

    • Yeah, it is heavy on the legal mumbo jumbo, but it’s solid stuff… David Kopel is a good guy.

      I don’t mind if folks want to use the “if it saves just one life” trope… but then they need to think about it logically and allow that same trope to be used in other ways. I mean, we should use it regarding cars, knives, red meat, pesticides, soybeans, dihydrogen monoxide, sex… the list goes on.

      It’s reasoning that doesn’t hold up to logic.

  2. Just a note; Dave Kopel is probably the smartest guy that I have ever met! I have spoken with him several times at II functions, and he has the ability to translate intricate legalese into common English. A rare skill indeed. If I make it out to The Independence Institute anytime soon and can chat with him I will ask for a translation that isn’t quite so mind bending, and then pass it on.

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