Two quick things, both of which tend to show that, despite having taken a whole semester on the subject, I don’t know that much about constitutional law yet. First, in my Gun Control/Gun Rights seminar, we recently read this law review article [PDF] by Adam Winkler asking what level of scrutiny should apply to the 2nd Amendment as an individual right. (The article was written in 2007, a year before D.C. v. Heller, but Winkler saw which way legal thought was moving by that point.) Winkler argues for a very low level of judicial scrutiny (any “reasonable regulation” of firearms is permissible, as long as it doesn’t “destroy” the right entirely) based on two centuries’ worth of state-level precedents. He notes that the legislative regulation of most individual rights in the Constitution is not actually subjected to strict scrutiny, which would require that the regulation serve “a compelling government interest” and be “narrowly tailored” to achieve its goals with as little infringement as possible. The assumption in areas subject to strict scrutiny (mostly free speech and regulation based on racial classifications) is that any such regulation is likely invalid, and the onus is on the government to show that it’s both necessary and limited in scope.
Anyway, one point that emerged from the discussion was a comparison of waiting periods for gun purchases and for abortion. Several people made the entirely valid point that forcing a woman to wait before she can take advantage of abortion services, can impose a potentially significant cost on the woman, especially in terms of dignity and personal autonomy, but also, in some cases, health or social costs. And, on the other hand, forcing a gun purchaser to wait, in the vast majority of cases, is little more than a mild nuisance — though the professor noted that for a person who feels his life is threatened, a gun purchase may seem quite urgent.
The comparison was useful, because it pointed out the ways in which, even if strict scrutiny applies, different actual circumstances surrounding the thing being regulated may mean that a waiting period is “narrowly tailored” in one instance, but not in another. But it also underlined something that makes me uncomfortable — namely, that levels of scrutiny are often applied based on the judges’ wisdom, rather than on categories drawn by the Constitution itself.
For example, whatever you think of its “prefatory clause,” to use Justice Scalia’s famous phrase regarding the first part of the Second Amendment, the plain text of the Amendment does undeniably guarantee “the right of the people to keep and bear arms.” It does, therefore, seem to me that in a hierarchy of things that the Court should look at with strict scrutiny, possible infringements on this right should be somewhere near the top. The right to privacy, conversely, is nowhere expressly mentioned in the Constitution, and although there are certainly arguments for finding it implied in some Amendments, it does seem that such an implied right, and second-order rights derived from it, should receive less judicial solicitude than the ones the Framers chose to make explicit.
Yet the Supreme Court declined to adopt strict scrutiny in either Heller or its sibling case, McDonald v. Chicago — whereas it did adopt it in Roe v. Wade. (The level of scrutiny may have been chipped away slightly by more recent decisions, but it’s still certainly much higher than the “reasonable regulation” standard that still largely holds sway in gun control precedent.)
And of course, there are very good reasons for all of this, and I’d rather there be reasonable gun regulation and that people not go around regulating other people’s uteruses. All of that is fine. But I do find it troubling that so much protection of abortion and other reproductive rights is accomplished in the courts, based on “implied” rights and “penumbras” and other things we can’t see, and that the strictest scrutiny seems to be for “things Justices find important” rather than for “things the People have deemed important through the explicit constitutional process.” It suggests, disturbingly, that the right outcomes are not particularly well-guaranteed by democratic processes, and conversely that elite jurists should substitute their judgment for that of the people. But once you open that door, who knows what evil things may escape?
Anyway, the second thing is just this flap about whether the embassy in Cairo, and subsequently the Obama Administration, have been sufficiently solicitous of the the First Amendment rights of the makers of Innocence of Muslims, the film linked to riots and protests in multiple majority-Muslim countries. The Atlantic has a decent, if superficial, interview with Jack Balkin on the subject of incitement to riot and the degree to which it’s protected under U.S. First Amendment law:
Whether it incites violence is the central question — and that means not just that the speech produces violence, but that the speaker intends it to.
Generally speaking, the rule is you can’t be held liable for speech that moves other people to violence unless your speech is intended to producing violence and is likely to almost immediately produce it….
The question is still whether Terry Jones is deliberately trying to incite a riot by promoting the speech at issue – and were his actions almost certain to have produced any resulting riot…?
The standard is designed to be difficult to prove. The point of the doctrine is to err on the side of protecting speech, even if it’s disgusting.
The “intent” standard is rooted, I think, in Brandenburg v. Ohio, a case about a Ku Klux Klan representative who was accused of “advocating” violence in a general way. I.e., he thought there should be violence, and said so, but he didn’t actually say, “Everybody drop what you’re doing and commit acts of violence!” However, if he had crossed that line and attempted to directly influence his fellow Klansmen to riot, perhaps he could have been held accountable for his speech, which would have left, at that point, the protection of the First Amendment.
I think the more interesting case, though, is something like Innocence of Muslims. We don’t know that much about the motives of the filmmakers yet. But what if they made the movie intending exactly this effect — that other people with whom they were in no way associated would be so offended that they’d riot? Assuming you could prove intent (as Balkin notes, that’s a high hurdle to jump), would the fact of the rioting and the intent to incite be enough where the speech itself doesn’t advocate violence?
There must be a case on this somewhere, but I don’t have time to find it. Still… interesting.