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Supreme's Nod to Guns Could be a Boon to Free Speech

The reasoning in D.C. v. Heller could have implications for future First Amendment cases
Supreme's Nod to Guns Could be a Boon to Free Speech
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Jul 1, 2008 3:00 PM PDT    Text size: 
LOS ANGELES — Marc Randazza, a law professor at Barry University School of Law and an attorney with Weston, Garrou, Walters & Mooney, has posted a blog to his personal website that answers the question, "What does D.C. v. Heller mean for First Amendment Rights?"

"District of Columbia v. Heller" is the historic 5-4 U.S. Supreme Court ruling that overturned Washington, D.C.'s handgun ban and sought to define for the first time the parameters of the Second Amendment.

Randazza asserts that, in writing the majority opinion for the Court, Justice Antonin Scalia has perhaps unwittingly provided a new road map for how to look at the First Amendment, which shares certain structural qualities with its Second cousin.

First, Randazza claims that the ruling resolves that the First Amendment is an individual, not a collective, right, something that he thinks might surprise a lot of people, lawyers among them.

"In Heller, at page 5, the conservative majority confirms that the First Amendment is unambiguously a personal right, not a collective right," he writes. "When even Scalia sides with me on a First Amendment issue, that makes me feel better."

Other positive implications from the ruling, according to Randazza, include the interpretation that as the First Amendment extends to new forms of communication, that our rights are at least as broad as they were believed to be at the time of the drafting of the Constitution and the neutral observation that just because the court doesn’t address something for a long time does not mean that it is settled law.

On the negative side, Randazza thinks the majority opinion affirms the belief that the purpose of speech can impact its Constitutional protection. He takes issue with Justice Breyer's dissent, in which he writes, "In fact, deference to legislative judgment seems particularly appropriate here, where the judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions."

While Randazza's overall opinion regarding the ruling is that it was "one of the most uncivil opinions rendered in recent years," his conclusions regarding the ruling's implications for the First Amendment are mixed.

"... it would seem as if the wings of the Court have traded sides with respect to the First Amendment. I would like to believe that they wouldn’t be so crass and results-oriented that these positions will revert when the issue before these same justices has to do with free speech and adult entertainment," he writes.

As to his expectations for such an outcome, pragmatism kicks in.

"A man can dream," he says.

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