The Volokh Conspiracy
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Wolford Teases Out The Relationship Between The First and Second Amendments
The Chief Justice, of all people, compares carrying firearms on private property to a pamphleteer knocking on a door.
Since Heller was decided nearly two decades ago, there have been attempts to draw analogies between the First and Second Amendment. Of course, this transplantation was always problematic. First Amendment doctrine is, for the most part, not originalist. The cases are laden with balancing tests that have little concern for original meaning. The entire notion of tiers of scrutiny is judge-made law. Why corrupt this new originalist frontier by transplanting the tainted soil of the Warren Court? Well, it is familiar, and judges do what is familiar. Still, it was a surprise when Bruen simultaneously repudiated balancing tests and looked to the First Amendment cases as a model.
In Wolford v. Lopez, the Court continued its interest with the First Amendment to resolve a Second Amendment case. And Chief Justice Roberts, usually not one for doctrine, was leading the charge.
In this exchange, Roberts seemed to analogize carrying a weapon's on someone's property to walking to someone's doorstep to drop off pamphlets.
CHIEF JUSTICE ROBERTS: Is there, under our law, an invitation, for example, for people solicitating, for people who want to drop off pamphlets about a particular -
MR. BECK: Yes, Your Honor, up until --up to the doorknob or --you know, there is.
CHIEF JUSTICE ROBERTS: Even though it's private property?
MR. BECK: Yes, Your Honor.
CHIEF JUSTICE ROBERTS: A stranger can walk off the sidewalk and go up to the door?
MR. BECK: Yes, up to the door, Your Honor.
CHIEF JUSTICE ROBERTS: Thank you.
In the wake of the Dobbs leak, this issue has been on the minds of the Chief and the other Justices. Back in the day, it was patriotic to advertise a Supreme Court Justice's address, and organize "peaceful" vigils outside the house where the Justices' young children live. But Roberts did not push back on Beck, because I think he recognized that there is a First Amendment issue at play.
Sarah Harris, the Principal Deputy SG, made a similar point in an exchange with Justice Gorsuch:
MS. HARRIS: I think, in the First Amendment context, you would say no big deal, you are now going from a world where candidates can go door to door and --for a campaign speech, but now you have to have a big sign in your yard that says political speech welcome for someone to go in. Or, in the Second Amendment context, Hawaii's same reasoning would lead to a rule that it's fine to ban tenants from owning guns in self-defense unless the landlord in the contract expressly consents to doing so. And I really think the concept that this is just tweaking consent elides the burden that Hawaii is imposing here of presumptively banning open carry, banning public carry.
Justice Barrett, who had to explain to her kids why she needed a bulletproof vest, may see the issue differently.
JUSTICE BARRETT: Counsel, do you agree, picking up on that, that Hawaii could pass a law that prohibited the carry without the express consent of the owner on lands that were closed to the public, on private residences?
MR. BECK: I do not, Your Honor.
JUSTICE BARRETT: Really? Like, so I couldn't --Hawaii can't have that law about, you know, my house or Justice Gorsuch's house?
This question reminds me of United States v. Jones (2012). This case considered whether the police can place a GPS tracking device on a vehicle. During the argument, Chief Justice Roberts seemed very concerned if the police could track their cars.
John G. Roberts, Jr.: You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month? You think you're entitled to do that under your theory?
Michael R. Dreeben: The justices of this Court?
John G. Roberts, Jr.: Yes.
[Laughter]
Michael R. Dreeben: Under our theory and under this Court's cases, the justices of this Court when driving on public roadways have no greater expectation--
John G. Roberts, Jr.: So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?
Michael R. Dreeben: --Well, equally, Mr. Chief Justice, if the FBI wanted to it could put its team of surveillance agents around the clock on any individual and follow that individual's movements as they went around on the public streets and they would thereby gather-
At the time, Linda Greenhouse speculated that the Justices would decide the case based on how the ruling would affect them:
In any event, it's not implausible to suppose that the outcome of the GPS case will depend in large part on the justices' view of reasonable government behavior toward a citizenry that includes themselves. In fact, it's implausible to suppose otherwise.
Back to Wolford.
Neal Katyal, counsel for Hawaii, explained that there are problems with importing First Amendment doctrine to the Second Amendment context.
MR. KATYAL: The --the --the problem there is that oftentimes, in the First Amendment context, the First Amendment rules are different than the Second Amendment because they forbid content discrimination and viewpoint discrimination. And a leafleting law often will have some sort of illicit thumb on the scale for a certain set of viewpoints. And so that's what -
JUSTICE KAGAN: Well, but, like any leafleting for anybody on any subject.
MR. KATYAL: Right. In that circumstance, you know, it --it may --this Court's precedents on viewpoint and content are so broad, it might encompass that. But, even if that were --even if you could jump past that, you'd still have to at least have rational basis review. This Court, in Free Speech Coalition versus Paxton, recently said, even for stuff that has not --isn't encompassed in the First Amendment, you still have to have at least some rational basis. Your example would flunk that. Here, Hawaii has done the opposite. There have been no guns, effectively, in Hawaii for 200 years. The underlying, you know, expectations and local custom, as Justice Sotomayor was saying, was that nobody had to think about guns.
I have been harsh on Katyal of late, but I think he is right here in a sense. The First Amendment has so many convoluted doctrines, including viewpoint discrimination, which do not map on neatly to the Second Amendment. Then again, I agree with the Solicitor General's broader argument. Hawaii's law is pretextual. Hawaii, and most blue states, enact gun control laws not to actually promote public safety, but to express disapproval of guns and gun owners. The signs that are posted in Hawaii are little more than exercises in virtue signaling. No one intent on doing harm will abide by the "gun free zone" sign. The Hawaiian government surely knows this, but doesn't care. They didn't have to think about guns for 200 years, but now Bruen is here, so they have to do something. So in a sense, the Second Amendment would embrace a form of viewpoint discrimination. But the Court was not interested in going down that path.
Still, I will give the Chief Justice some more credited. He stated clearly that the Second Amendment was not a second-class right. In 2014 and 2015, Justices Thomas and Scalia first made this message in a series of dissentals, but their colleagues kept denying cert. In December 2015, I wrote an essay for NRO titled, "Justice Thomas: Second Amendment Is Not a 'Second-Class Right'"
CHIEF JUSTICE ROBERTS: Counsel, I just want to understand because one of the motivating concerns, and you can see it in -in our decisions under the Second Amendment, is that it is a disfavored right. And it strikes me that one of the things that your side of the case has to come to grips with is that it is a very clear constitutional right under the First Amendment if I, for example, as a candidate for office, want to walk up to your door on private property and knock on the door and say, here, you know, give me your vote, that's exercising a First Amendment right. But you say that it's different when it comes to the Second Amendment, that you can walk up --when the candidate wants to walk up and he's carrying a gun, is --what exactly is the basis for the distinction? Because part of, again, what --what our precedents talk about in this area is that the Second Amendment has been treated as sort of, you know, a second-level right. And that's one area where I --given this law, I don't really see the basis for the distinction.
MR. KATYAL: So we totally agree, the Second Amendment has no disfavored right. At the same time, there are rules about the Second Amendment and I think rules that this Court laid down in Bruen in which you've said the relevant question is whether or not the scope of the Second Amendment's text as informed by history would say that there is a violation of the right. With the First Amendment, you've got burden tests and all sorts of stuff that this Court disclaimed in Bruen. And so it's just going to apply somewhat differently.
Katyal is right about this part. Bruen rejected balancing tests, which is the essence of all First Amendment doctrine. I think you can still say that the First and Second Amendments should be treated equally, without transplanting soil.
Still, Roberts would not let the issue go. It is rare to see the Chief so animated in an oral argument, especially when the case concerns a controversial topic like guns.
CHIEF JUSTICE ROBERTS: Well, just before --I don't want to lose the --the thought. You said part of the history and tradition is there's no right to enter private property without the owner's consent, right? Well, we know that that's not a through line, right, because you do have a right to enter the owner's private property if you want to exercise your First Amendment rights, right?
MR. KATYAL: So not without their consent, Your Honor.
CHIEF JUSTICE ROBERTS: Sure. I don't have to have a sign on --on the --the --the sidewalk before you enter my property saying: Okay to come on if you're going to give me some leaflet or okay to come on if you're a candidate. The assumption is that there is a First Amendment right. Yes, you can --you can withdraw it. And, again, I'm just trying to figure out exactly what the difference is between the First Amendment and the Second Amendment.
MR. KATYAL: What I think what's doing the work in your hypothetical about the leafleting or something is the government is putting its thumb on the scale of some sort of speech and saying they're worried about some type of leaflet or the like. To the extent that they just ban it entirely, it would flunk rational basis review. The relevant right there is not located in the property, property and the place it's spoken, but, rather, the government is coming in and affirmatively taking a position on the
Justice Barrett likewise was pushing towards the First Amendment.
JUSTICE BARRETT: Well, Mr. Katyal, I don't understand why you're resisting the First Amendment --well, I do understand why you're resisting it, but let's say there's no content discrimination. It's just a ban on leafletting and it's a ban because people don't like solicitation, so they just don't want people passing out pamphlets. It's not aimed at Jehovah's Witnesses or anything like that, like some of our old cases. Why would that fail rational basis review?
MR. KATYAL: So I think it might because, as this Court said in Free Speech versus Paxton, you still have to have some underlying rationality for it.
JUSTICE BARRETT: Yeah. People find it annoying. They don't like it. They think it affects their businesses, and people don't want to go to businesses if they're going to be accosted by pamphleteers.
MR. KATYAL: It may be a rational basis problem, but I don't think it's a First Amendment problem. This Court in Rowan said that "the right to engage in expressive activity generally stops at the outer boundary of every person's domain."
Later, Justice Alito returned to the theme of the Second Amendment as a second-class right:
JUSTICE ALITO: Mr. Katyal, you're just --you're just relegating the Second Amendment to second-class status. I don't see how you can get away from that. If someone owns a store --or let's say it's a little restaurant and this person has very strong political opinions and does not want anybody in that restaurant who is wearing attire that is expressing approval of a particular political candidate. That person -the owner of that store --restaurant has the right to say you can't come in, right?
I predict a victory for the Second Amendment, though the opinion will likely be a doctrinal mess.
