L&CP Symposium 2019: Gun Rights & Regulation Outside the Home | Panel 1

L&CP Symposium 2019: Gun Rights & Regulation Outside the Home | Panel 1

October 11, 2019 0 By Stanley Isaacs


JACOB CHARLES: Welcome
and good morning. Thank you all for being here. My name is Jacob Charles and
I’m the executive director of the Center for Firearms Law,
a newly formed academic center here at Duke Law School. The center seeks to
aid the development of the field of firearms law as
a scholarly field of inquiry. Throughout the year, the
center, with faculty co-director Darrell Miller and
Joseph Blocher, aims to elevate the discourse
around Second Amendment and Firearms law. We’re excited to have
a fantastic panel today for a discussion
on gun rights and regulation outside the home. I’d like to thank
the Duke Law School for allowing us to host
this symposium here, and to the Journal of Law
and Contemporary Problems for undertaking to publish
the articles that will be coming out of this symposium. I’d also like to give
a special thank you to Allison Rackley who
assessed the center, she’s right outside, and
helps make everything go smoothly today. Without further ado, I’ll turn
it over to our first panel. JOSEPH BLOCHER:
Thanks lot, Jake. I’m Joseph Blocher. And before we kick things
off on this first panel, I just wanted to
reciprocate the thanks to Jake who has been in his
role as executive director now for barely six months. And in that time,
has pulled together symposia workshops,
this conference, has been working on his own
scholarship, some of which we’ll hear about later
today, is getting ready to teach his first
class next semester. He’s really just had
an extraordinary– productive time on the job. We’re very grateful. And also like to echo Jake’s
thanks to Allison, who actually is there in the back. Allison, thank you so much for
making everything come together as smoothly as it has. [APPLAUSE] I’m also grateful to all of
you for being here, and very, very happy to be serving as
moderator on the first panel. I’m going to be doing that
just by briefly introducing our three speakers, and
then getting out of the way so they can talk
about their research. And then, I’ll kick things
off with a few questions, and then open up
to the audience, so please be preparing
questions of your own. I will start right
here to my left with Greg Magarian, who is
the Thomas and Carol Green Professor of Law at
Washington University School of Law in St Lewis. After him, Josh Blackman,
who is associate professor at South Texas College
of Law in Houston. And then on the far
right, Mary Anne Franks, who is professor
of law and deans distinguished scholar
at the University of Miami School of Law. Start with you, Greg. GREG MAGARIAN: Well, thank you. I also want to
thank everyone for– all of you for being
here, and everyone who’s been involved in
getting this event together, Jake, the editors of Law
and Contemporary problems, and especially
Joseph and Darrell, who have been my
guides and load stars in thinking about
the Second Amendment since before I knew them. Certainly, since
before I knew Darrell, and who continue to just
do amazingly wise work in this field. What I want to talk about
today is what I hope and plan will be part of a book
project ultimately on the interconnections,
relationships, conflicts between First
and Second Amendment rights and interests. In some ways, the stuff
that I’m talking about today is so close to so many
themes that interests me that I think I’m having
a hard time framing it. So I apologize to all of you. What I’m going to do
today a little bit, is attempt to
reframe on the fly. I’m going to try to
explain my ideas here in a way that makes
coherent sense in the hope that I can do that. It’s not entirely
clear that I can, so if you feel the need to
just let your mind wander, check your phone, whatever,
I’m not going to object. So this piece of
this larger project is about the ways in which I
think Second Amendment claims, gun rights claims more broadly,
interfere with or undercut certain kinds of first
Amendment speech interests. The biggest and most
prominent example of this sort of
conflict, and the one that justifies my presenting
this work in this symposium, is what we can shorthand
is the Charlottesville problem, the problem of open
carry and public protest and the extent to
which those things are compatible or incompatible. But I think there are a number
of other types of conflicts that fit into this broader First
versus Second Amendment, speech versus guns frame. And so, the main thing that
I want to try to do today is talk about those different
speech gun conflicts, sort of situate them together,
organize them a little bit, and say a little bit
about how they play out as matters of
doctrine, legal doctrine, or more commonly, public policy. And then in the
last part of my talk I want to tease out a
couple of broader themes that I think emerge
from these intersections and clashes between First
amendment and Second Amendment type interests. In thinking about this stuff
as doctrine or public policy, there’s an interesting dynamic. The Second Amendment is
still emerging, obviously, as legal doctrine, there’s
a lot we don’t know. And so, all of these conflicts
I’m going to talk about could change
dramatically depending on what the Supreme
Court decides to include within the scope
of Second Amendment doctrine. First Amendment in
contrast is, obviously, at this point, venerable. We know a lot about it. But I think it’s
always evolving. And maybe more, if
I’m being more honest, I have to say I hope
it keeps evolving. Because I’m not terribly
thrilled about where First Amendment doctrine
is at this moment. So my analysis of
these conflicts is informed by that interesting
dynamic between where the First and Second Amendment stand. I should also say
that I come to this with a very strong
normative prior– the big theme of this
book and of my thinking and writing in
this area basically boils down to a preference
for speech and speech rights versus guns
and gun rights, to the extent those
things are incompatible. So I want to be transparent
about my biases. But I hope that what
I’m going to talk about will at least, in its
organization and description, be useful to people who
completely disagree with me. So broadly speaking,
I think we’ve seen three– what I’m
trying to organize is three different
kinds of conflicts between speech interests
and gun rights interests. The first category,
broadly speaking, is what I call public
discourse versus public carry. The second category is conflicts
between public information and public political
processes on one side, and the effort to
secure and develop gun rights on the other side. And then the third
broad category is conflicting claims about
the causes of gun violence. So I want to talk about each
of these categories of First and Second Amendment
conflicts in turn. And the first to contain a
couple of different moving parts. So public discourse
versus public carry, there are
really two types of issues that have emerged
that seem to me to fit into this umbrella. The first is the
Charlottesville problem, and the second is the issue of
concealed carry on campuses. And state statutes that are
compelling public universities to allow concealed carry. So the Charlottesville
problem is very familiar. Open carry in public
protests, gun rights advocates say open carry is a
tremendously important right. Should be part of what the
Second Amendment guarantees. Free speech advocates who are
uncomfortable with open carry in public protests counter
that guns in public protests create or exacerbate
volatility and chill speech. A lot has been written
about this issue compared particularly to
the other things that I’m going to talk about, so I
don’t want to rehash too much. I want to focus a little
bit on the policy debate, and particularly come at it
from the side that I occupy– the side that’s more
sympathetic to the speech interests and the chilling
of speech argument, here, and less sympathetic to
the gun rights claim. One approach that
people in that camp have suggested to deal with
the problems that they see open carry as presenting
for public protest is a zoning approach, where
certain kinds of public events, public protests, by virtue of
their emotional and political volatility, should
be gun-free zones. And you can see why that notion
would appeal to gun control advocates. As somebody who is
both a gun control advocate and advocate
for a certain robust– I think, I hope–
vision of free speech, I don’t love the zoning idea. Because I don’t love
the idea of classifying protests as a particular
kind of speech. To be very clear, I
think public protest is and should be at the
core of a robust conception of the First Amendment. I think public protest
is probably one the most important things
the First Amendment should be protecting. But if you legally
define public protest as a particular
kind of sphere, I’m afraid that that opens up public
protest to greater regulation and vulnerability from all
kinds of political forces that want to tamp
down public protest. So a more extreme way
to go would be just to make this open carry versus
public protest problem a basis for completely
rejecting open carry. And for my money, I’d be
comfortable with that. But a lot of people of good
will and good conscience wouldn’t be. It seems to me that a
middle-ground approach is more promising. And that would be
to simply create a time, place, and manner idea. Expound a time,
place, and manner idea within Second Amendment doctrine
that allows law enforcement to limit open carry based
on the needs and dictates of particular situations. For anyone who takes the
Second Amendment seriously, that approach would require
some kind of judicial backstop. Because law enforcement
would otherwise have unbridled discretion. But I think that discretionary
situation-specific approach would be a more promising way
of dealing with the difficulties that open carry presents
for public protest. The other public
discourse versus public carry problem deals with
public universities. States like Texas,
that have legislated a requirement that public
universities allow concealed carry. There’s some ways in which
the stakes of this conflict are lower than the
public protest context, and some ways in which
they’re higher, particularly on the gun rights side. So the stakes are lower
because, generally speaking, universities are more subdued
settings than public protests. We talk about the importance
of robust and sometimes sharp discussion in classrooms. And that’s certainly true. But generally speaking,
the fever pitch doesn’t rise to
the level that you see in protest
and counterprotest in a situation like
Charlottesville. So in some ways, the
interests and concerns are the same in the university
setting, but dialed down. A couple of big
differences, though. Here, we’re talking about
concealed carry rather than open carry. And I think for gun
rights advocates, that makes the stakes of
the university setting and conflict somewhat higher. Because I take it that
concealed carry for more people is more likely or more
obviously something that should be protected
by the Second Amendment than open carry. On the other hand, universities
are a much more controlled and regulated space from the
outset than public streets and sidewalks, where
protests take place. And there’s a stronger
argument, I think, that university administrators
should have greater autonomy in determining the proper
balance between the gun interest and the
speech interests. Again, I want to do a little
bit of a critique of what some of my fellow travelers
in this debate have said. One common framing for trying
to argue about why universities should not be compelled
to allow concealed carry has to do with the conception
of academic freedom and the idea basically that, again,
guns chill speech. Knowledge that guns are in
the classroom, even concealed, is going to chill certain
people from saying things. And that what this
really comes down to is a problem with
academic freedom. The difficulty with that
framing is that academic freedom is a remarkably underdeveloped
concept in First Amendment law. Everybody believes that
the First Amendment protects academic freedom. Most people who care
about free speech believe quite fervently that
the First Amendment protects academic freedom. But there’s very
little development in doctrine about what
that means, especially when you get into a situation
at a public university, where the state government
is telling the university administration or the
university regents or directors what to do. Where the locus of academic
freedom sits in that scenario is a very difficult
thing to tease out, at least given current
doctrine and scholarship. So I think it’s probably
more useful to talk about the university
concealed carry problem as just a basic free speech
versus gun rights scenario. So that’s public discourse
versus public carry. The second big category
of First, Second Amendment speech-gun conflicts is the
one that I’m having the hardest time framing neatly. And the frame that
I’ve got for it right now is the interest
in securing and expanding gun rights versus the
interest in public information and the development
of public policy. And in this category, there are
two different things going on. One has to do with
legislative processes and the business of government. So the restrictions
on federal research on guns as a public
health problem, a sort of self-censorship
of government to secure a space for gun
rights not to be interrogated. Certain kinds of state laws that
preempt local gun legislation. That’s obviously
something within the power of state governments. But some of these
laws go so far as to impose sanctions on
individual local legislators or officials who try
to promote gun laws. And then there are
extreme collisions of guns and legislative
processes– the militia that occupied or descended
on the Oregon legislature back in June. Now here’s where
you might be saying, I thought you were
talking about the First Amendment and free speech? What does any of this
have to do with the First Amendment and free speech? It’s a fair question. My answer is I think that, for
me, the First Amendment is most important for securing space
for public political discourse and the development
of public policy. And so when gun claims
and gun interests stifle legislative processes,
stifle government research and inquiry, even stuff
like legislative bans on lawsuits against gun
manufacturers, which again, is well within the
power of government. But I think stifles the
development of policy in an undesirable way. Obviously, from the
perspective of somebody who is sympathetic
to gun control, but I think also just from
the perspective of caring about allowing
government to figure out what the best way is to
handle important problems of public policy. The other type of
problem that falls under this second umbrella,
this securing gun rights versus public
information umbrella, is one that has gotten some
play and discussion already. And that’s these
gun privacy cases. This is one area where the
speech versus guns dynamic has emerged into litigation. So there’ve been a
couple of cases– Doe versus Putnam
County in New York case, where gun owners sued to
prevent the local government from turning over names
and lists of gun owners under a public information law. The other case that’s
quite similar to Doe is NRA versus Bondi case,
gun rights challenge, where the individual
litigants wanted to be able to
proceed anonymously. And in both of these
cases, the concern was about guns being a
stigmatizing– gun ownership and gun advocacy being
a stigmatizing factor. And so gun owners should be able
to keep their identities out of public view. Both of these cases
were essentially litigated and argued as gun
rights, gun privacy cases. But it was gun privacy versus
the government’s interest in public administration
of one kind or another. In both cases, the
gun owners lost. These cases actually bear
a pretty close resemblance to a line of cases in
First Amendment law, most recently a case
called Doe versus Read, where signatories to
California’s Proposition 187, the anti-same-sex-marriage
initiative from several years ago, tried to keep their
identities secret on the theory that their expressive
activity in signing this anti-same-sex-marriage
petition would similarly be stigmatizing. And in all of these cases, the
speech cases and the gun cases, the courts have been
unsympathetic to the privacy claims and have basically
said the interest in privacy doesn’t extend that far. Again, you may be
wondering, what does this have to do with the
First Amendment or free speech? And again, my response has
to do with a somewhat broad conception of free
speech interests focused on the public’s
right to information. So the way in which these
cases present a conflict or juxtaposition between
speech rights and gun rights, in my view, has to
do with the interest in, again, what we’re
seeing as an emerging idea of gun privacy versus the
interest in public information. There are good
reasons that people might want to know
who gun owners are, just as there are good reasons
that the public might want to know all kinds
of other information within the government’s
possession. There’s another gun privacy case
that played out differently, and differently for
an interesting reason. This is a case called
Wollschlaeger, an 11th Circuit case that presented a challenge
to a state statute that imposed a lot of restrictions
on physicians and medical providers
related to guns. The physicians weren’t
allowed to ask about whether the patient
had a gun in the home, weren’t allowed to talk about
the ways in which guns might present a public
health problem, weren’t allowed to maintain
certain kinds of records about gun ownership. Physicians challenged this
on a First Amendment ground that various aspects of this
law improperly encroached on their expressive autonomy. And they prevailed. And the 11th Circuit ultimately,
in an en banc decision, struck down this
Florida statute. Again, there are interests
in play here of gun privacy versus public information. But they play out
in a different way because this was a case about
a legislative action on behalf of gun rights that implicated
individual expressive autonomy. Implicated, in other words,
an ordinary First Amendment interest, rather than these
rather broadly conceived First Amendment interests
that I’m talking about in the other cases. And with that expressive
autonomy interest in plain view, the
court found a basis for bringing the clash between
gun and speech interests into the open. And in this case, holding in
favor of the speech interest. I want to say more in
a couple of minutes about that difference
in Wollschlaeger and the importance of the
individual autonomy interest, and how that plays into
this whole discussion. One last big category of
gun versus speech conflict. In this one, there’s
less to say about– at least I’ve found less
to say about it so far. It has to do with just a
basic clash on a policy level between speech
interests and gun interests. A clash that most often emerges
in the wake of mass shootings. A mass shooting happens. Gun control advocates say we
need more gun restrictions. And a significant segment
of the gun rights community responds, no. The problem here is not guns. The problem here is media. The problem here is
violent media imagery. And if we’re going
to do anything to deal with these
horrible mass shootings, we shouldn’t regulate guns more. We should instead regulate
violent video games and violent films. The political or policy
reason for that move is obvious enough. It’s a way of
deflecting attention from a type of regulation that
gun rights advocates believe fervently should
not be happening, and that’s further
gun regulations. But it’s interesting to
me that, in some contexts, gun rights advocates
talk about, oh, you know. Gun rights and speech
rights, they go hand in hand. We’re talking about the same
kind of interests, here. We’re all libertarians. But when push comes to
shove and when there’s moments when gun regulation
is most clearly on the table and has a chance
of going somewhere, a lot of gun rights
advocates immediately jump to, no, let’s
restrict speech instead. Let’s go after the First
Amendment right rather than the Second Amendment right. Those efforts are, at this
point, largely rhetorical, unlikely to succeed. But again, as with all of
these types of conflicts, if the Supreme Court expands
Second Amendment rights in a way that really
does foreclose a lot of the types of regulation
that gun control advocates push in the wake of mass
shootings, it’s entirely plausible that
the restrict violent media argument will get at least
a more serious hearing in public debate. All right, so I’ve talked
through what these conflicts are, where they stand. I want to say a little bit now
just to close about a couple of big themes that
I think emerge from these speech versus
gun rights conflicts. And this is part of where my
effort to frame this stuff has been difficult. And it finally dawned on
me that the two themes I want to talk
about are probably the two themes
that I’ve obsessed about the most in my work up
to this point in my career– public versus private and
stability versus dynamism. So let me say a few words about
public versus private first. In these gun-speech
conflict scenarios, generally speaking, the most
potent and frequently rehearsed gun rights arguments are
about individual autonomy. I should be able to
carry a gun on my person or to carry a gun in this
place or to keep and bear arms in this way
because I have a right to protect myself and my family. It’s a lot of individual
autonomy focus. Now, there is a more
collectivist argument that sometimes gets
aired on behalf of gun rights in these debates. Joseph and Darrell
have helpfully talked about this as the
marketplace of violence idea. The notion obviously taken from
the First Amendment marketplace of ideas. It’s the good guys
with guns idea. That guns in society
will create a kind of equilibrium, where public
debate, among other things, can proceed unimpeded
because everybody knows that they could be
shot if they get out of line. And the good guys have guns. I think the marketplace
of violence argument is underdeveloped and
not terribly persuasive, although certainly, there is
a lot more to say about it. And perhaps I just haven’t
been persuaded, yet. But generally speaking,
on the gun rights side, the arguments are grounded
in individual autonomy. In contrast, on the speech side,
we have an interesting dynamic. Again, in that
Wollschlaeger case, the presence of an individual
expressive autonomy interest was the thing that
animated, that opened, was the key to the
First Amendment kingdom. We can litigate this thing as
a First Amendment challenge because there is an
individual autonomy interest. But as may have already
become clear by this point, I don’t think that’s the most
important First Amendment free speech interest
in these conflicts. I think the much more important
interest is the public interest in being able to
receive information, to engage in public
political debate, to direct legislators
and government institutions to legislate and
regulate in the public will. So if you think of the free
speech right in these scenarios more in terms of
a collective right to receive information,
a collective right to engage in political
activity, then the speech side of
the conflicts becomes, I think, much more robust
and much more important. And in my view, that is the
right way, a better way, to think about these problems
than courts generally do. So the other dynamic
here is one that’s sort of a hobbyhorse of mine–
stability versus dynamism. I wrote this book about the
Roberts court’s free speech decisions a couple
of years ago that was built around this theme. In a lot of debates about how
free speech law should take shape, there’s
ever-present conflict between interests in maintaining
social and political stability and enabling social
and political dynamism. I think that contrast and
that dynamic, that debate, comes through very clearly in
these guns versus speech cases. The pro-gun arguments in
all of these conflicts generally boil down
to safety arguments. We need guns in
order to be safe. The world is a
threatening place, and self-defense
and self-protection is critically important. And guns are a very effective
means of self-defense and self-protection. We want to keep the world safe. The speech interests
are more generative. They’re more creative. They’re more about the
world as a promising place. Let us see what we
can make of the world by discussing it and
engaging in various kinds of public discourse. I’m a dynamism guy. In an age where
stability is threatened, I’m somewhat swimming
against the tide. But I like a regime in which
social and political dynamism are enabled and enhanced. I think, again, a robust
public-minded conception of the First Amendment
and free speech principles more broadly promotes
that kind of dynamism. And one of the things
that concerns me about the pro-gun
rights arguments in all these scenarios
I’ve been talking about is the way in which
they seem very grounded in this notion
of stability, safety, that I think at its worst
can lead to stagnation. So the big takeaway
here is that, again, often we hear arguments that
First and Second Amendment rights are peas in a pod. That they’re compatible. That they resemble each other. And in some ways,
that argument is true. But I think it’s very
important and very important in the development of
doctrine going forward and theory going
forward to focus on the ways in which gun
and speech rights claims are very distinct and in
many important respects, incompatible. Thanks a lot. JOSEPH BLOCHER: That’s a
perfect segue way to Josh. Talk about a
different intersection of First and Second– JOSH BLACKMAN: What
a perfect segue. It’s a pleasure to be here. Thank you Joseph and
Darrell for having me. Also, I am grateful for balance. It’s often the case at
Second Amendment conferences that everyone’s on one
side of the debate. And I think in this
panel, a conscious effort was made to give the
other perspective, which I will dutifully provide. So let’s talk about why
the First and Second Amendment work together well. This is a case that I
am very familiar with– the First Amendment, Second
Amendment, and 3D-printed guns. I can see the gasps. I have been litigating
this issue since 2015. And I came to it
somewhat reluctantly. In 2014, I wrote a couple
law review articles. One had nothing to do with guns. It argued that data,
code that people develop, will be protected by
the First Amendment. The second article
was about guns. And it questioned
whether the government could prohibit
sharing files that can be used to manufacture
firearms with a 3D printer. Like most scholarship, I doubted
it would ever be relevant. Most of our stuff is never read. My stuff got read. I got an email out of the
blue from Cody Wilson. Cody, you may know the
name, was the first person to develop a 3D-printed gun. He’s been called the
most dangerous man in the world, and all these
accolades, which he loves. He had made headlines for
creating the 3D-printed gun. But even more than that,
he put on the internet, on a site called DEFCAD,
files that a person could use to manufacture
the gun for themself. That site is no
longer up, in part because the State Department
sent him a letter. And the State Department said
that you are in violation of export control law. That is, by putting a
file on the internet, you are engaging in
the export of arms. Now, I didn’t really
follow the case after that. He took the site down. But little did I know
that Cody actually was building a case to go
after the federal government. And he called me
and said, I want you to help me with the litigation. Now, I didn’t really
have much experience. I was sort of skeptical. But I was curious,
and I learned more. And I said that he actually had
a decent case under the First Amendment. There’s some
administrative stuff here, which I won’t bore you with. But there’s some other stuff. But like I said, the First
Amendment has some teeth. So I joined a legal team. Alan Gura, who was
the person who argued. Heller and McDonald
was our lead counsel. And we filed a lawsuit in Texas. Preliminary
injunction was denied. A divided panel in the
5th Circuit affirmed. Supreme Court denied cert. OK, sort of what we expected. But things were looking up. Preliminary injunctions
are hard to win. We were going back down for a
summary judgment proceeding. We were actually
pretty confident. The 5th Circuit affirmed
on very narrow grounds and seemed to suggest
that we may actually prevail when we’re on a normal
summary judgment standard. On remand, the district
court ordered the parties to engage in settlement talks,
which is always the case. Judges like settlement. And we actually reached an
agreement with the government to settle the case. And I wasn’t surprised. I think the government
was kind of nervous, given how closely
en banc vote was and given how the composition
of the court had changed a bit. We reached a settlement. That’s when things got dicey. In the summer of
2018, last summer, we were sued across the country. Long story short, I argued
four [? tiros ?] in five days. Sued in part by one
of your funders. He came after us pretty hard. I beat him. So again. especially grateful that I’m
able to be here at a conference where the person that
I litigated against is paying for my travels. So I will enjoy my bagel. I love academic freedom. What happened? On the eve of the settlement, we
were sued by a bunch of groups. So several gun control
groups, Giffords, Every Town for Gun Violence,
the Brady Campaign– they sued us to
block the settlement. And they tried to intervene
at the last moment. The judge denied the
request, which was right. They had no interest
in the settlement. Immediately after the
judge denied that request, we had our license to put these
files online, at which point, Cody did. We posted these files online. And they would be online for
nearly three or four days over the course of
that long weekend. But that was just
the first onslaught. Over the next few days, we were
sued by the attorneys general of nearly 20 states. I had to argue in federal
court in Pennsylvania and State Chancery
Court in New Jersey. Who knew that you could
seek a nationwide injunction in chancery court? Who knew? I don’t know– I didn’t
think you can do it, but apparently you can. I won that one also. But the last one, I lost. The Washington attorney general
sought a nationwide injunction to block the governor from
giving us this license. And a judge in Seattle
entered that injunction. And with that, we lost. And we took the files down. They were online for a
good three or four days, and been downloaded
thousands of times. You can get them
anywhere you want. The litigation continues apace. We’re now– oh, my goodness–
in the Third Circuit, in the Fifth Circuit,
in the Ninth Circuit. We’re basically everywhere
at the same time. When you get sued nationwide,
the appeals take some time. Eventually, this will,
I think, will all filter up to the Supreme Court. Whether they want this
case or not, we’ll see. But the litigation
continues apace. My goal today is not to talk
about the litigation too much. Which, I know it’s fun. We can talk over lunch about it. But to talk about the issue from
a constitutional perspective. Now, let me dispel
some myths about what this case is and is not about. We’ve never asserted the
right to print the guns. It’s true. We have never once
asserted the right to actually print these
guns or possess these guns. I freely concede that
the state’s interest in actually regulating the
printing and the possession of the guns is different. I have to, because of Heller. Heller acknowledged that there
are longstanding prohibitions on possession of those
who have criminal history and mental illness. And you know the
paragraph, right? So given current law,
I can’t go to court and say that you have a right
to print these for anyone if you have a criminal
background, or perhaps a mental illness,
whatever happened– you’re disabled for some reason. OK? So let’s get that off the table. Myth number two–
you can just download a file, click print, and the
gun comes out automatically. This is what most people think. The actual answer
is quite different. It can take up to 40 hours
to create a 3D-printed gun– an entire week of labor. And it’s not as simple
as downloading the files. There’s a lot of
work that a person has to put into this
process manually. First, you have to what’s
called slice the code. So if you imagine an object
in three dimensions, right? This bottle, about a foot tall. Every single layer is a slice. And with each slice, you have to
decide how it will be rendered, what materials you’ll use, the
proportions and dimensions. It’s not just
point, click, shoot. There’s a lot of effort
that has to go into it. And even after you
print the parts, you have to actually
treat the process. For example, you have to put
these chemicals on it so it withstands the combustion. The reason why these guns
are very hard to make is plastic is a terrible
material to make a gun with. It’s awful. Why? Metal is good. When metal gets hot, it expands. Metal gets cold, it contracts. That’s a very good
property for a gun. Plastic’s the opposite. When plastic gets hot, it melts. And when it gets
cold, it cracks. So if you build a
3D-printed gun wrong, you’ll probably blow
your hand up more likely then shoot someone. Also, there’s no rifling,
there’s no barreling. There’s no accuracy. These are awful guns. Then, myth number three– the overwhelming majority of
people who download these files never print them. They don’t. Some people do it as
an act of rebellion. I think it’s most people
do to just be jerks, right? That they wanted to
stick it to the man. A lot of people do it
for artistic value. The liberator, the 3D
gun Cody developed, has been displayed in museums. It’s been studied by
architecture students, interior design students. He’s won awards. It’s been put in a gallery. So there are a lot of
uses for this information beyond actually making the gun. Myth number four– the sort
of code we’re talking about is indecipherable
to a human being. Just, it cannot be understood. Therefore, it should not get
First Amendment protection. If I were to show you
the code and give you a five-minute tutorial,
you’d all understand it. It’s fairly straightforward. It’s defining shapes in terms
of width, length, and height. This is code that really
anyone can understand. And the way the
software operates, it actually displays
it or renders it in three dimensions,
the same way you might download a video game and maybe
modify it to create a new level or to create a new
character, this technology operates in the same fashion. Myth number four– this
is like a black box that we can’t have
these 3D-printed guns. The problem is, when you try
to regulate the files we have, you immediately spill over
into regulating other things that you may not be so keen on. So I’ll give you
an easy example. I gave a lecture on
this about a year ago. And a student came up. And she does a lot of this– what’s called LARPing, right? Live action role
playing, where people create these fake weapons
to engage in various fantasy games. They actually act out
scenes from movies and books and et cetera, whatever. To each their own. Not my thing, right? If you take these
laws seriously, it is now a crime in New
Jersey to put online code to make a fake gun. Right? People 3D-print swords. I don’t know, they do it. People 3D-print rifles. They do it. I don’t know. You know, these fake toy
rifles for movie scenes. These statutes are so
unnecessarily over-broad that they require limiting
the production of totally innocuous parts. And the New Jersey statute,
if you take it literally– which I do, as a First
Amendment lawyer– it actually bans the
printing of a screw. Because a screw may be
used in a firearm, right? So there are such significant
line-drawing issues with actually trying to
prohibit these files, that I don’t know that they can
withstand First Amendment scrutiny. There might be
ways– and I actually am open to the idea of maybe you
can craft a statute that works. I don’t know what it would be. But the current ones in the
books now simply don’t work. The next myth I wanted
to disabuse you of is that this is
actually a problem. There are a lot of
guns in America, a lot of guns in America. They’re easy to get to. They’re cheap. If you are intent on
actually harming people, you are not going
to spend a week printing a 3D gun that maybe
shoots one round and then blows up in your hand. You’re not going to do it. I argued a case in Washington
on this, and Seattle. And the Washington
attorney general– I swear to you, it’s in
the transcript– said, we are worried about MS-13
smuggling plastic guns over the border to use in
acts of narco-terrorism. My goodness. I almost laughed out loud,
it was so preposterous. Much of the
opposition to this is based on fear-mongering that
this is some sort of problem. Myth number six–
plastic guns are not new. They’re not new. In 1987– I might be
off by a year or two– but in the late 1980s, Congress
enacted the Undetectable Firearms Act. This law made it
a crime to possess a gun with less than a
certain quantity of metal. In other words, the gun
has to have enough metal that it would trigger a
magnetometer, a metal detector at an airport, for example. Why was this law on
the books in the 1980s? Because plastic guns aren’t new. And indeed, I don’t think this
current technology makes it that much easier to make one. It’s a hell of a lot
easier to make one at home. Let me tell you how. Go to Home Depot. Buy a PVC pipe. You just built a gun. And I’ll tell you, the PVC
pipe you buy is a hell of a lot stronger than anything that
comes out of a 3D printer. So this is largely a
problem that doesn’t exist. People are afraid
that, oh, my god, you’ll smuggle plastic
guns into an airport and commit assassination. You don’t need a 3D
printer to do that. But I’ll agree with
you that you can make one, which is why I
think the prohibition should be on the end product. That is, the prohibition
should be on actually printing and possessing it. I think that if the
state wanted to, they could have a law that
works something like this. They say, if you want to
manufacture your own firearm, you just go through
a background check, and we’ll give you
a serial number. Some states have
regimes to that effect. I think under Heller,
that would probably be OK. I mean, I’m not crazy about it,
but I think that would probably work under Heller. New Jersey said to make
your own gun at home, you need to have a license. You need to be a manufacturer. I think that goes too far. We have a very long
tradition in this country of making your guns at home. Under federal law,
you can make it. You can sell it. Don’t try and sell it. Commerce, right? You can’t do that. But you can make
your own gun at home. So the prohibition must
be, in the end result, not on the actual sharing and
possession of the information. I can give you Supreme Court
case after Supreme Court case that explains that the
creation and dissemination of information is speech,
even on the internet. The federal government
has taken the position, at least in the
Obama administration, that export control
laws allows the governor to limit posting
files on the internet. That argument was novel, right? Traditionally, the
argument went like this. If I want to send a blueprint
of a nuclear submarine to China, I need the governor’s
permission. OK. I got you. I’ll go along with that. That’s cool. But this is public speech
in the public domain. It’s open source. The governor never used these
sorts of export-control laws about secret information
to stifle public speech on the internet. That goes too far. Right? I don’t know that Congress could
enact a law that’s narrowly tailored enough to prevent
posting files on the internet. ACLU versus Reno and
these sorts of cases go very much in the
opposite direction. And we care very much about the
direction of the Supreme Court. I think the current
court will be very skeptical of any sort
of content-based restriction, which is what these laws are,
putting files on the internet. Now that’s the federal aspect. But I think the federal
government at least has one advantage. They can regulate
interstate commerce, which, under current law,
the internet is part of. So I think the federal
government could potentially put together legislation
that addresses this, although I’m not sure
what it would look like. But I’ll entertain
the possibility. Who can’t? The states. This is where we
have a huge problem. Over the summer, again,
we were sued nationwide. New Jersey– so at a TRO
against us, ex parte, what was their argument? Their argument was this. That putting a file
on a server in Texas was a common-law
nuisance in New Jersey. I’m sorry? That putting a file on
the internet in Texas resulted in a common-law
nuisance in New Jersey. OK. So I also teach property
in addition to common law, and that’s not
what a nuisance is. But the judge actually
found it persuasive. He only held back because I was
able to give him a settlement offer to limit the files. I told him, judge,
here’s what we’ll do. We will put a firewall
around New Jersey. We will block all New
Jersey IP addresses. I called it the great blue wall,
because at the end of the week, all the blue states
were behind this wall. This has never been done before. This is like North
Korea stuff, right? Usually, states do
not block access to entire geographic regions. We figured it out on the fly. It was great. We had Pennsylvania,
New York, New Jersey, California– basically had
the entire east and west coast behind our blue wall. Right? Everyone else in the middle
could access the files freely. The great in-between, as
Justice Scalia would call it. But it’s problematic
when a state tries to regulate the
commerce of another state. So you have Dormant
Commerce Clause. You also have
preemption, an argument I’m sure Mary Anne will love. We have Section 230 of the CDA. I knew we’d have
this one, right? Which, as I read, at least,
limits a state’s ability to impose additional liability
for certain internet content providers. Right? Now, that doesn’t apply to
people who create the code. But part of our case also is
people who republish the code. We have codeisfreespeech.com. They publish this information. And as we read
Section 230, states can’t impose liability for
those who post these files and republish them. OK. So I think the federal
government could potentially have a narrowly tailored
statute to go after this, although I don’t know
what it would look like. I’m very skeptical it
[? could ?] get past scrutiny. I don’t think the states can. Now what happens next, right? Well, unfortunately,
this involves guns. If this was any other
free speech case, I’d win 9-0, right? Imagine that Georgia, back
when they passed the statute, saying, it’s a crime to have
files of three different sex toys. Right? Just imagine. Imagine if 3D printers
existed in the 80s, when Bowers was good law. And they said, it is now a
crime to share information how to 3D-print sex toys. Oh, that would be a
9-0 case today, right? Every group– the ACLU– would be on our side. How can you ban sex toys? Well, George says,
it’s immoral, right? This harms– OK, those are
not good cases anymore, but just presume Bowers
is still good law. But this is guns. And unfortunately with
guns, people sometimes move around a bit. And especially when you
have these, oh, my god, these plastic guns, that
you create this panic. You know, my parents
don’t like guns. And they saw me. And it was like, Josh,
what are you doing? You’re on– I saw you
on the PBS News Hour. What are you doing
defending this gun guy? It’s OK, mom. We’re good. But people have this irrational
fear of guns sometimes. And I think that clouds what’s
a serious First Amendment issue. Because if New Jersey
can put these limits on free speech in this
context, then there’s a lot of other contexts
that fall as well. Now, people may
want that, right? I realize people
in this room may be OK with greater
restrictions on free speech. Fine. I’m not. So I take this case as seriously
as I do precisely because I care about the First Amendment. This isn’t primarily
a gun issue for me, although I think
guns are important. This is primarily a free-speech
issue where the state cannot issue a directive to a US
citizen to take down a file from the internet that’s
in the public domain. Thank you all so much. I look forward to
your questions. JOSEPH BLOCHER: That’s a
good segue to your areas of expertise, Mary Anne. JOSH BLACKMAN: I
set Mary Anne up. MARY ANNE FRANKS: This
is the show we always do. This is good. Because I also want to talk
about fear, because you mentioned a lot about
fear and panic and guns. And I love all those things. And the main focus of
what I want to talk about is how the irony of so much of
the Second Amendment debate. And that the irony of so
much of the discourse on guns is that it’s very often
focused on protectiveness. This idea of strength. That we need to have guns,
I think as Greg was saying, we need to protect ourselves. It’s an autonomy kind of idea. And that really does
dominate the way that people talk about guns. And what I want to emphasize
is how much of that, for all of its
talk about strength and all of its
talk about defense and all of its talk
about autonomy, I think the gun debate
is really driven by fear. And I don’t mean fear of guns. I mean the fear that drives
people to need guns in such a very visceral and
complicated and all-consuming, I would suggest, way. So that they not only
need them in the sense of getting the
courts to recognize certain rights within the home. But now we need them everywhere. We need to have them everywhere. We need to have
them in our schools. We need to have them
in our grocery stores. We need to have them
in our public parks. And that that is actually driven
not by a sense of strength, but by very much a sense
of particular fragility. So the title of my piece, or
the working title for my piece, which no one knows,
because I didn’t submit it. But the title of the piece is– it’s a secret. Is “The Second
Amendment Safe Space.” And the subtitle,
because I like subtitles, is, “The Constitutionalization
of Fragility.” OK, so that gives you a little
bit of idea of where I’m going. But, the idea of the safe space. Everyone in this
room, no doubt, has become familiar with the
way that term has generally been used and
become very popular in the last couple of years. Now, it’s been around
for a long time– 1960s or ’70s. And there’s some debate
about whether or not it was mostly used
by feminists who were talking about places
where they could raise feminist ideals without
being shot down, or whether it was primarily
the use by, for instance, LGBT individuals who could
congregate in spaces where they would not be overtly
discriminated against or harassed. In any event, the common
use, or the reason why we talk about it
the way we do today, is in the context of the
so-called snowflakery that we are all now
subjected to, especially on the part of people like
you sitting in the room– college students, university
students, et cetera. Because apparently, there is a
crisis on America’s campuses. And all of our students are
coddled and they’re weak and they’re afraid
of everything. And this has become quite a
theme that has become popular among not even just
conservative circles, but it’s really been picked up
by across-the-board spectrum. And one of the pieces that
probably everyone in this room knows is the piece that
appeared in The Atlantic called “The Coddling of
the American Mind.” Right? Jonathan Haidt has been banging
on this drum for some time. And what’s really interesting
about that particular piece and how influential it
was is that they really– the two authors really
go into some detail about the characteristics they
think about the safe space movement. The kind of fragility of
students today or kids today. And some of the things
they mention, I think, are particularly relevant. So they mention, for
instance, that they think that safe spaces
are infantilizing. It’s the idea that
you’re trying to make the classroom into something
where no one can scare you. No one can disturb you. No one can get under your skin. And they mention there’s a few
characteristics that come along with that. In particular, logical
fallacies, as they say, that really drive this
sense of fragility, this culture of fragility. And one of them is
emotional reasoning. And the idea of
emotional reasoning is I feel something strongly. Therefore, it must be true. Right? So I feel something. I feel nervous. I feel scared. I don’t like
something, therefore it must be true,
regardless of whether or not I have objective
evidence to show me this. OK, that’s one. The other that I think is really
relevant that they point out in that piece is
catastrophic thinking– the idea that
everything is terrible and that you’re under
attack at all times and terrible,
terrible things are going to happen to you,
no matter where you go. And they mention that
all of these things feed into something
else that they say which is really destructive,
in particular, they think, for academic discourse. Which is that all of that
makes you, in some ways, very vindictive
towards other people who don’t agree with you. Because you are so scared
and because you believe your feelings are facts
and because you believe that the worst things
are going to happen, you have to suspect
everyone around you who doesn’t agree with you is
wrong and needs to be silenced. So you get this vindictiveness. Now actually, they
call it, in this piece, they call it vindictive
protectiveness. So what I want to submit
is this conversation that we’ve all been subjected
to for the last few years over safe spaces and the fact
that students are just unable today to be resilient
and tough in the ways that I guess Jonathan
Haidt was when he was a young man, that
what we’re getting there, that sense of fragility, is
actually completely inaccurate. And I’ve written about
this previously in my work. I have a book called The
Cult of the Constitution. And I go through the fact
that the college free-speech crisis is mostly made-up. And that this kind
of characterisation and this kind of epidemic
that we’re supposed to believe is sweeping college
campuses simply isn’t true. And it often comes based
on anecdotes by people who don’t teach, for one. But also there’s a tendency
not to verify whether or not the crisis that’s being
articulated actually has some basis in fact. And tends to ignore
things, for instance, like a president who might
say that flag burning should be punishable by stripping
somebody of citizenship or being put in jail. That that might be more of
a sense of chilling speech and maybe a more of a concern
about whether or not we are entertaining
different kinds of ideas. Or, for instance, the fact
that something actually exists in the world called
the Professor Watch List, which exists solely for
the purpose of reporting on left-wing professors
and their ideas. And to shame them and humiliate
them, hopefully get them fired. If we were going to be concerned
about academic freedom, if we were going to be concerned
about the state of the First Amendment, it seems
like there’s a lot more that we could be focused on. But what I do think
is interesting about the safe
space caricatures, that it is describing something
incredibly accurately. It’s not college
students, though. What it’s actually
accurately describing is Second Amendment fetishists. In other words, we think about
what that all means, right? The idea that your worldview
is dominated by fear. When you say I need
to be protected or I need to be able to
protect myself in my own home. I need to be able to protect
myself on the street. I need to be able to
protect myself at Wegmans. What you’re really
saying is, I’m scared all the time of
everyone and everything. And to the extent that
other people are not as scared as I am
and do not want to engage in the same
types of measures that I wish to take to
tend to that sense of fear, they’re all wrong. And they’re not just
wrong in the sense of I disagree with them. They have to agree
with me because I’m going to bring my gun
into these spaces, whether they like it or not. And as an objective matter–
as opposed to, let’s say, insisting on certain types of
terminology in the classroom, which actually doesn’t
really hurt anyone– the fact that
someone brings a gun into a space where other
people don’t want it does objectively put
those people at risk. When we talk about
vindictive protectiveness– and you get that Jonathan
Haidt and Judy Shulevitz and the whole line of people
who say we really need to be worried about safe spaces– one of the other
things we’re told is we have to care about this
because these students don’t understand that they’re actually
doing themselves no favors. They’re not safer. They’re actually making
themselves very vulnerable. And I would suggest that the
same lesson is actually true here. It isn’t just that the people
who are insisting on the fact that they need guns everywhere
are forcing everyone around them to comport
with that same idea. They’re also not making
themselves any more safe. And this is
something, of course, that we can talk about in
terms of the empirical reality. That the idea that guns
are going to keep you safe is not the same thing as
it actually being true. And so here we have a beautiful
example of emotional reasoning. The idea that a gun
makes me feel safer is used as evidence for the
fact that guns do make me safer, when they objectively do not. And they don’t
make anyone safer. They don’t make schools safer. They don’t make stores safer. And what they also don’t
do is make it easier for us to anticipate
at any point before someone actually
opens fire whether or not someone is a suspicious person
that might be apprehended. We want to talk
about, first of all, the chilling effects that
the Second Amendment might have on the First. We’ve talked a little
bit about that. But it also has some
pretty interesting effects for the Fourth Amendment. That is to say, what is a
suspicious person in a place where open carry is allowed? Someone walking through a store
with a gun– is that a threat? Or is that someone
who’s an activist? So in other words, if
we’re really concerned– and we should be concerned
about the idea of any idea or any person’s fear,
any group identity that is tied to a threat. A feeling that I’m afraid
of something, and you all need to be afraid, too. And to the extent
that you’re not afraid of the thing I’m
afraid of, you’re all wrong. And I’m going to take
measures that you don’t even understand are protecting
you, but are actually going to make you less safe. And you all need
to be OK with that. So I want to suggest
that that really is what’s happening in the
Second Amendment fetishization. So it’s not just doctrinal. It isn’t just that you
get cases, let’s say, and quite limited so
far in terms of where you can have a gun and why. They’re really pretty
limited, right? Heller telling us that there’s
the right to protect yourself within your own home. That’s what the right
to bear arms is about. But what we see, of course,
in the case of the Second Amendment, very often the
same thing with the First, is it’s not just a
question of the doctrine. It’s not just the question
of the actual constitutional theory. It’s actually the popular
constitutional ideas. What does the
average person think? Because whether or
not the Supreme Court ever tells you
that you’re allowed to carry a gun into
a school, the fact that someone carries
a gun to the school is still something we
all have to contend with. It is not the kind of thing
any of us can simply ignore and just say, well,
I’m not, myself, going to be making
that kind of choice. So I don’t have to worry
about someone else’s choice. I’m not sure if the
Supreme Court actually supports that as an
interpretation of the Second Amendment. It doesn’t matter. And if that gun should be
used in a mass shooting, it won’t matter to
anybody who happens to die in that shooting, whether
or not this was something that was supported by jurisprudence. So what we’re left with
is a real culture– and it really has become
a culture and an identity around guns– that
is essentially telling the rest of the world,
you have to accommodate me. You have to accommodate the fact
that I’m afraid all the time. And you have to
accommodate the fact that my fear is objectively
going to make you more unsafe. So how do we get there? What’s odd about
this, of course, is that the Second Amendment,
the fact that people have a preference for
the Second Amendment, isn’t by itself a bad thing. People have preferences
about which rights they like. There’s very few of us are out
there advocating for the Third Amendment. It’s fine. But the fact that
we have preferences doesn’t mean that
we can nonetheless maintain constitutional
legitimacy and be able to use that
kind of appropriation if the kind of advocacy we are
doing is so highly selective, that it actually
undermines other rights. First Amendment rights being one
of those, more general rights, too. Let’s say life, liberty,
pursuit of happiness, all those kinds of things,
which guns in many ways do. It isn’t a problem to be
selective, in other words, about the constitutional
rights we care about most. That’s fine. The problem is whether
or not we become so selective about
those rights that we don’t care about
the havoc that they wreak on the entire
constitutional ecosystem. Or, the entire reason for
us to have a constitution to begin with, which, at
least in one narrow sense, we could say is to keep us
from falling into anarchy. The idea has to be on
some level we can’t just be that suspicious of
each other all the time that we might shoot
somebody’s head off. It’s supposed to be some
product of civilization that we’ve gotten
out of that, right? The Constitution is
meant to be the idea that we would have
a law in place as opposed to just blowing
each other’s heads off all the time, because we’re nervous
about what they’re doing or because they stole our
acorns or whatever it is. So we can say that
we have a problem. We can say that– in my book, I call it
constitutional fundamentalism. We have a problem when
we want to take one right and elevate it over
all the others, such that the kind of destructiveness
or the kind of impact it has on those rights
is actually something that other people are going
to have to contend with. That’s a problem. But it suggests that even
more than the problem of selectiveness
about which rights we tend to put all
of our emphasis on, and the irony that we might be
going to the mat for gun rights and not care at all, let’s
say, about reproductive rights or voting rights, right? But that we would also care
very selectively about who it is who gets these rights. Because presumably, the argument
behind constitutionalization– to say let’s turn this
into a federal case– is to say that these
constitutional principles are supposed to protect all of us. That’s the promise of
the 14th Amendment. But it’s also just a
general logical principle, one would hope. That if you were advocating
for a right that really belongs just to one group, and everybody
else is harmed by it, then you’re not really arguing
anything about a principle. You’re arguing for a preference. Right? That’s our test, right? The easiest test in the world
to figure out whether or not we’re actually principled
is to ask whether or not we think this is a right
or a privilege that is being applied equally. And if we look at Second
Amendment advocacy, we see that that’s
simply not the case. To the extent that Second
Amendment activists really do claim that they want to make
sure that everybody can defend themselves, we have
to ask ourselves why they take the
cases that they do. That is to say, who are
they advocating for? Why is it that the
Second Amendment becomes an issue when somebody wants
to have permitless carry, for instance? Why is it an issue
when somebody wants to be able to engage in an
open carry demonstration? As opposed to if we
thought objectively, if we took a snapshot of
American society, and said, who is it actually who’s
being denied the right to defend themselves? Who is it actually
that struggles to be able to enact that right
without getting, I don’t know, shot by a cop? If we actually
ask that question, we obviously know
what the answers are. There are plenty
of groups that we could say are not actually
getting to enhance their Second Amendment rights. African-American men who
happen to be carrying a weapon, or heaven forbid,
not even carrying a weapon, but might look like
they’re carrying a weapon to someone who is
determined to see one. How much are they actually able
to protect their own Second Amendment rights? How much are we going to make
Philando Castile, for instance, into an issue? A man who is telling
a police officer, I have a permit for this
weapon that I have in the car, and gets shot for that. And it’s not just a question
of him getting shot for that, but it’s the reaction on
the part of the gun lobby. Which is, essentially, silence. If that were the kind of issue
that the Second Amendment fetishists, I’m going to
say, really cared about, that should have
been a flashpoint. Or another flashpoint
would have been when Marissa
Alexander in Florida fires warning shots against her
estranged, violent ex-husband when he’s trying to kill her,
or threatening to kill her. And yet, silence again
from the people who brought you Stand Your Ground. So what we’re also
seeing in the play-out just in terms of
the doctrine, just in terms of what kinds of
cases actually make people into Second Amendment activists,
is a very selective idea about who it is that we
need to be protecting. If we wanted to really
talk about the fact that some people are having
a hard time defending themselves or having their
rights vindicated in court, we really ought to
start with men of color and domestic violence victims. And yet, no. If you look at the entire
history of the National Rifle Association pushing
through Stand Your Ground laws in every state,
what they say not only is we need to have
more gun use, we need to be able to empower
people preemptively more to be able to use deadly force. But when asked
about whether or not that should apply to domestic
violence victims being beaten in their own
homes, they say no. Marion Hammer literally said no. In an interview about Stand Your
Ground about Florida in 2005, she was asked about
whether or not she wanted to
empower people to be able to defend themselves
in their own homes against cohabitants. She said of course not. Of course not. So we have a problem when
we’re using the Constitution selectively to undermine other
people’s rights and to select out a certain group of people
that gets to use their rights at the expense of
everybody else’s. Because unlike other
kinds of rights, who holds a gun actually is going to
impact everything else, right? It is actually true on some
level, despite the fact that you have any number of
people within certain identity groups saying, your
choices affect me. We’ve heard this a lot. So, same-sex marriage is going
to somehow affect my marriage, my straight marriage. Or women getting
abortions is going to affect my rights in some way. Well, actually, that’s not true. That’s literally not true. But when it comes to
Second Amendment rights and carrying a firearm into
places where people don’t want them, you are, in fact,
affecting other people’s rights without their consent. And arguably, the reason
why you’re doing it is because it’s what
makes you feel safe. Right? There was an article
in The New York Times by Judy Shulevitz that
tried to mock, really, this idea of safe spaces
by talking about how, oh, the people in the
safe space, when there was a conversation about
rape culture going on, they’ve got things like
toys and Play-dough in there to make themselves
feel better about trauma. Well, we could argue that
a much more dangerous toy to have on you if you are
worried about trauma is a gun. But it doesn’t just
stop there, right? We’re now looking at
the fact that there’s been a kind of
extraordinary move on the part of the private
sphere to say, you know what? We’re not bound by
the Second Amendment. That should be obvious, right? The Second Amendment only
applies to state action. So if Walmart
says, we don’t want people to be able
to carry guns here, then that should be OK, right? If Salesforce says, we
don’t want our software to be used to sell
guns, that should be OK. And in fact, you
would have thought some of the same people
who normally would identify with the Second Amendment
would say, yeah, that’s the free market at work. So for instance, if
we look at the fact that Delta Airlines, in
the wake of Parkland, said it was no longer going to
be having its NRA discount. Which a lot of
people didn’t know. Since when did Delta
have an NRA discount? But they said they were
going to stop using it. And the response from the
lieutenant governor of Georgia was, well, that
means Delta’s not going to get the tax breaks
that we were going to give it. Right? Not even thinking,
not even a moment of irony to reflect
on the fact that this is a private company
making a private decision that is, among other things,
a First Amendment-protected decision. To say we want to
dissociate ourselves with a certain program,
which we are free to do. And to threaten actual
state action against that. This is a sign of
how dysfunctional that obsession with the
Second Amendment really is. And this is a real
shame, I think. Because the private
sphere is actually giving us a lot of ways to
think through the deadlock that we’ve reached when it
comes to the Second Amendment. And this is paralleling
in many ways part of what Josh had referenced
before, which is Section 230, and the question of
online companies. Because we’re having a
very similar discussion in some ways. What happens when Facebook or
Twitter says, you know what? We are going to ban white
supremacist content. We’re just not going to let you
radicalize other people online because we don’t think
it’s a good idea. What are we now starting to see? Instead of people praising
that as the free market doing its thing, suddenly,
oh, that’s censorship. But of course, it’s not, right? Because these are
private companies. But the same sense of
“everything is state action” is infecting the Second
Amendment as much as the First Amendment debate. And not only is that just
wrong as a doctrinal matter, it’s also just a shame. Because if we’re convinced
that the First or the Second Amendment and the doctrine that
we get out of it is really good and it’s working
out for the best, I suppose that would be
an argument for expanding it and saying, let’s
make everything in the world look
like state action. Let’s treat Walmart as
if it’s exactly the same as the government. Let’s treat Facebook or Twitter
as if they were state actors. The thing is, we’re
kind of making a mess of the First and
the Second Amendment to begin with, right? And there’s no reason
to borrow from it. And in fact, we could be
thinking about the opposite. Why not think about
how this is what the robust fear of
individual liberty, as the court has called
it recently, is for? Letting people innovate and
come up with different ways to handle the question
of people’s fears, people’s tendencies,
people’s desires. Let them think
differently about this because the First and
the Second Amendments don’t have to constrain them. We can learn from that and maybe
actually inform and get better decisions when it comes to
hard areas or gray areas, when we’re talking about
the right to free speech or the right to bear arms. So these are things
that I’m worried about. And I think that if we think
about something that happened a few weeks ago– this
is where I’ll close– a point at which we can ponder
in the wake of the El Paso shooting. And some of you may know
that in the manifesto– the El Paso shooter left a
manifesto, which made reference to the founders. And how the right
that he was exercising in shooting all these
people was something that he was really
proud that America had. And of course, in Europe,
they don’t have it. OK? And only a week
later or so, a man walks into a Missouri
Walmart with an armed rifle. And he’s wearing a
bulletproof vest. And causes a panic, obviously,
because this is barely a week since the last
Walmart shooting. And when he is
apprehended, he says I was testing Walmart’s respect
for the Second Amendment. And that’s quite a claim. He’s 20 years old, by the way. He’s 20 years old. And he’s testing a
private store’s commitment to the Second Amendment. So if we think that
it’s not a big deal that people misunderstand what
the Second Amendment actually is for or where it’s supposed
to protect us or not protect us or where it’s in operation,
if we don’t think that it’s an alarming proposition
that we are trying to make the entire world into
a safe space for the Second Amendment, consider the
fact– consider the panic. Consider the fact
that law enforcement didn’t know whether they should
shoot this guy or talk to him. Consider the
implications of this. Because where we’re left when
we have this cultural identity around the gun, the cultural
identity around fear, and the idea that
the entire world needs to accommodate
it– to accommodate the sense of fragility. And when disruption
and harm and even death result, that the
answer is going to be, I was simply testing
our dedication to the Second Amendment. We should all be very
worried about that kind of vindictive protectiveness. Thank you. JOSEPH BLOCHER: Thank
you to all the panelists. This has been a really
awesome set of presentations. And it opens lots of questions. We have about 10
minutes, so I’m going to ask just two quick ones
and then open to the audience. And start with you, Greg. As you were talking, you
described two main themes that have distinguished your
thinking here, and with regard to the First Amendment,
the public versus private, instability versus dynamism. But as I was
listening to you, it sounded to me like there’s
actually two other distinctions that fall into
four boxes, maybe, that explain how you’re
thinking about things. And one is the
distinction you draw between rights and interests. And you note there’s
certain kinds of things we accept as rights
because accepted sources of
constitutional meaning, doctrine, whatever establish
them as definitely rights. And then there’s interests,
which are related. They’re about speech or guns,
but they’re not necessarily constitutionally protected. And then, of course, you
distinguish speech and guns. And that gives you
four boxes, where you’ve got speech rights and
speech interests and gun rights and gun interests. And I wonder if some
of the conflict you’re trying to resolve here is
just by trying to figure out which boxes we’re in? Such that a Wollschlaeger
is a pretty straightforward free speech rights case. That should have been
a very easy case, it seems to me, for
the 11th Circuit. And a very attenuated
Second Amendment interest, if anything, right? Is that how we’re going
to resolve these things? Is that most of it’s
going to end up that it’s a right versus an interest? And then secondly,
if it is rights versus rights or interests
versus interests, do you– and I think I know the answer
to this, based on things you’ve written–
do you take what Mary Anne was saying
earlier, that sometimes it’s OK to be selective. And just run headlong
into the idea, yeah, there’s a
hierarchy of rights. And the First Amendment
is above the Second. And I’m just happy
to accept that. Does that trigger the
second-class right argument about which you’ve
already written? And I should note, also filed
a brief, an excellent brief on, in the pending
[? Niserper ?] case. And then Josh, for you,
building off of that question, it seems to me on that
rights-interests thing that the story you
tell is one of a right with no interest behind it. At least no Second
Amendment interests. As you’re describing
it, the people who might print these guns are
doing it, as I think you said, to be jerks or to protest. And you say they’re not
actually effective weapons. Which in the course
of you saying why they’re not dangerous,
that these are actually really bad weapons. Which I think would
also make them really ineffective for self-defense. So there’s actually
not really anything here other than the principle,
which might be plenty. But I wonder if this case had
been one where the free-speech claim threatened gun owners,
would you tell the same story? So imagine a hypothetical where,
instead of 3D-printed guns, some Cracker-Jack
engineer out there designs a thing which you can
print on a 3D printer which disables all guns within 50
feet, or something like that. And they want to distribute
the code for that. Government passes a
law to prevent it. You take that case. Is it the same case? Or is it different
because there, you’ve got guns being shut down as
opposed to being enabled? But Greg Johnson, and
then I’ll open it up for any other questions. GREG MAGARIAN: All right, we’ll
try to do this really quickly. So the answer to your second
question is simpler for me. And it is yes. When we have a interest
versus interest scenario, that’s your basic
public policy debate. And obviously, we argue at
that point about selectivity based on our policy preferences. More eccentrically,
I have argued and I continue to believe
that courts should be more open and more
courageous, perhaps, about acknowledging when
rights come into conflict. And working through
those conflicts as a matter of normative
constitutional law, which is really applied political
theory in the end, anyway. As to your first question about
whether the right-interest designation helps us resolve
this, I guess it depends on– as I was listening to
you, I was thinking, what do you mean by we? If we’re talking about
at a level of doctrine, yeah, it’s very important
what the Supreme Court says about the Second
Amendment and what actually becomes qualified
as the Second Amendment’s right claim. And that development
of doctrine is going to tell us a lot about
how these conflicts come out. In terms of a more
normative argument– and I’d love to talk to Mary
Anne more about this– this whole
public-private boundary, state action boundary. I tend to believe in a lot
of circumstances that– and I think Mary Anne offers
some very apt qualifications to this. But that some rights are
properly and desirable translated as norm. So there are a lot of
these circumstances, whereas a person with a
particular conception of what free speech means
in principle, I would like to see
those principles play out even in the private
sphere at the level where we’re talking about
interests rather than rights. And I’ll leave it there. JOSH BLACKMAN: Well, thank you. Imagine a different law
where the state passed a law saying it’s a crime
to 3D-print tools that can be used to
perform abortions. Is that a violation of First
Amendment or the due process clause? Maybe both. I view this as a
hybrid case, where one right reinforces the other. We’re not just
printing out do-dads for whatever you want to do. You’re printing
out something which is, I think, part of the
Second Amendment right. But these are not the
only dangerous rights. And this is one part where I
disagree with Marianne quite a bit. We have a lot of dangerous
rights that afflict others. I would say the right to
abortion does inflict harm. And we can disagree on
that for hours on end, but that does inflict some harm. Miranda– people can go
free and become dangerous. Rights during the criminal
trial, rights of due process, right to attorney. A right to speedy trial. These are all rights which
if they’re not adhered to, dangerous people can
go into our community. There are studies showing
how Miranda’s resulted in increases in crime. I think it’s a
mistake to say this is the only dangerous right. We have lots of
dangerous rights. As for hypocrisy, we’re
all hypocrites, right? No one’s consistent. Group A favors this group. Group B favors this group. I don’t think this is fetishism
or limited to gun rights activists. I think this is just the
nature of human development. We all focus on topics
we care deeply about. I like to write about one thing. You write about another. I don’t think it makes us any
sort of bad faith experts. But it tends to be what
we tend to focus on. I think that’s a
question we all ask. Why do we write
what we write about? I don’t care about torts. I don’t care about bankruptcy. I don’t care about some obscure
topic of commercial law. I like Second Amendment stuff. I like First Amendment stuff. Why? Maybe go on a couch and explain
it to a psychiatrist some time. But this is something we
all approach on our own. Why do we do what we do? I don’t think it’s a
strike on someone to say to pick one side or the other. JOSEPH BLOCHER: Just to be
clear on my question, Josh. It was not asking– not
accusing you of hypocrisy. It was trying to get
you to– in this case, it sounds like a
happy coincidence that your commitment to the
First and Second Amendments lined up. And I was trying to come up
with a hypo that would force you to choose between them. So the hypo is you’ve
got a thing that actually will disable guns. Do you choose the
First Amendment there, or do you go with– that’s all I was
trying to get to. It’s a law– it’s the
same thing, except– JOSH BLACKMAN: It’s the
negatives I’m not getting. JOSEPH BLOCHER: The device,
rather than creating a gun, creates a device that
will disable guns. The person wants to
distribute the code. They’re being
prevented from doing it on exactly the same facts. JOSH BLACKMAN: Like a
V-chip almost thing? JOSEPH BLOCHER: I don’t know. I don’t know how it would work. I just invented it
on the spot, here. But who– if anybody’s
listening, engineers, can come up with that? But yeah, like a V chip
that would disable guns. Do you take the
cases at the same– JOSH BLACKMAN: And Congress
says you can’t make it? JOSEPH BLOCHER: Exactly. JOSH BLACKMAN: No,
they can do that. No, if private actors
want to do this, they can. I’m not on the Josh
Hawley camp where we need to make big
Facebook a public utility. I’m not in that camp. Indeed, in my paper,
I talk about this. What if Comcast or Verizon want
to create a filter that said, if we intercept any
packets with files that could use a 3D-printed
gun, we’ll block your packet. I don’t like that, but I think– I don’t consider
an ISP a utility. I think they could
probably do it. If Google or Facebook
decided they don’t want to host our files, they can. I mean, indeed, your
group sends lots of letters to hosting companies,
saying don’t host these files. I don’t like them. I think it’s harassing. But if private entities want to
use economic forces, they can. If Walmart wants to
prohibit open carry, I don’t have an
objection to that. It’s a business decision. A lot of people think the
Second Amendment limits Walmart. I got so many calls, Mary
Anne, in the last week. Can Walmart ban guns? I’m like, of course they can. Of course they can ban guns. They can do whatever they want. By the way, they didn’t
actually ban them. They can be request
not to carry. It wasn’t even a ban. It was actually mostly PR flack. But look, lots of people don’t
understand the Constitution. First Amendment– oh,
Facebook censored me. No, they’re not. Facebook can’t censor you. They’re not a government actor. Right? People don’t understand
the Constitution at all. This is not just about guns. People are generally
ignorant of the Constitution. Why? I love civic education. I think it’s an important
attribute altogether. Thank you. JOSEPH BLOCHER: On
that, let me open it up. I got Darrell and Eric. And we may go two or three
minutes over, but not too long. SPEAKER 6: Am I going first? JOSEPH BLOCHER: Yeah, go ahead. SPEAKER 6: So I– [INAUDIBLE] excuse me, I
stepped out for a second. If you asked this
question already, then just say
asked and answered. My absorption of
what you were saying is probably going to be
relevant to everybody on the panel, which is what if
[INAUDIBLE] That is, what if, like [INAUDIBLE] But
imagine if you had a kind of speech code, right? That we assume is protected. That actually does
something dangerous. It hijacks a smart car. It turns off the
life-support system. However well you would think
it– it’s not conduct, right? Let’s say you have
a download it. There has to be some sort of
a [INAUDIBLE] agent, right? The speech is the weapon. Where do you understand
that dynamic? Because it seems
like that’s the risk that Josh has identified
as being a risk. But the slippery slope in
one direction, and the risk of not holding the
line at this is you end up going down the
other part of the slope. That is, somebody says that I’ve
got a weapon that [INAUDIBLE] JOSEPH BLOCHER: Let’s get
Eric’s question in, too, and then respond to both so
we don’t go over too much. Eric? ERIC: Yeah, sure. This is a fantastic panel. And my question has to do– I’m not directing it at
anyone in particular. But it has to do with
this notion of fear and how fear comes
into play when we’re talking about
regulating the Second Amendment in the name
of the First Amendment. But it seems like in
between the gun-carrying and the chilling of
speech is subjective fear on the part of the bystander
whose speech is chilled. And it’s that fear of the gun
that is chilling the speech. And this is something I’ve
thought a great deal about. I’ve written about it a bit. And one of the challenges
that I come up with, that I face when I’m
thinking about this, is how can you–
can we just accept as fact that the
presence of a gun, and the mere presence of a gun,
causes fear in other people? And secondly, that preventing
that fear is a constitutionally salient interest that can
justify regulating the Second Amendment? And in the background,
I’m thinking that usually, the regulation
of fear or regulating in the name of fear
wouldn’t be sufficient for First Amendment impingement,
absent some imminent threat. And there are other
contexts where just the mere presence of
fear would give us great pause before we regulate. And so I’m just wondering
how you deal with that issue? JOSEPH BLOCHER: Let
me just recommend Eric’s excellent article
on this, which I think appeared in Law and
Contemporary Problems. If I– ERIC: It did. JOSEPH BLOCHER: Right– yeah,
so a couple of years ago. Well done L and CP. I think– GREG MAGARIAN: I
got to take that, because it’s really interesting. So I want to push back on
part of what you’re saying and really embrace
another part of it. The part that I’ll
push back on a bit is that there’s a direct
parallel between these two conceptions of fear. And I think there’s a
very important difference. The notion of chilling
of speech presumes or posits that there is a
consequence of fear that is socially undesirable. That is, that speech that
would otherwise benefit society doesn’t happen. I don’t see the same sort
of position or premise available in qualifying
or promoting the notion that the fear that gives
rise to guns and self-defense should be something
that we care about. The part of what you’re
asking, though, that I think is really– that I want to embrace, that I
think you’re right about– you asked, should we assume
that this fear actually has this consequence? And you’re quite right. It’s an empirical question. And this is something that
First Amendment law has never dealt with, and
constitutional law has never dealt with terribly well. The notion of the second part
of that last thing you asked. You know, is it a matter
of constitutional moment that speech is chilled? Yeah. I mean, doctrine has
established that very well. What First Amendment
law hasn’t established and what social
science may have done a better job of establishing– I should probably know
better than I do– is just this question
of how exactly does the chilling of speech work? I mean, in doctrine,
it’s always just assumed. Yes, people will have this
fear, and they will not speak. So my position is, assuming
that’s true, then, yeah, that’s a constitutionally
valid interest. And it’s a really socially
important problem and loss. But the empirics are
heavily underdeveloped, and we would
benefit a great deal from knowing more about
how the chilling of speech actually works. MARY ANNE FRANKS:
I guess, partly in response to both of those
things, I think that so much of what is interesting about
the Second Amendment debate is how much it reveals the
discussion of the First Amendment debate, right? That is to say, the First
Amendment is a mess. And the debates over exactly
these questions about harmful– in some ways, harmful
speech, right? That’s one version
of the question. And the question of how much
we can quantify that fear, we haven’t done a good job of
this in the First Amendment. We’ve rested on this kind of
formalism that says, well, if it’s not directly causing
harm at this moment or almost exactly the moment of
harm, then we’re just not going to count it. And that completely
discounts the fact that of course it’s
possible for speech to in fact silence other people. Speech can silence. Speech can harm people by the
infliction of speech itself. There doesn’t have to be
a second or third thing to happen. That’s possible. But the courts have
mostly ignored that. And I think mostly because
that isn’t to say, I mean, I’m right here with [? Greg ?]
[? Shower ?] on this. They ignore it,
literally ignore it, by saying there’s
all kinds of speech that we just preemptively
regulate and don’t even call it a First Amendment issue. The fact that we have
lawyer-client confidentiality, or perjury laws, or
securities regulation. All of these things regulate
speech all the time, but people don’t generally
talk about them that way. And so there’s a
huge question, first of all, about what we
even count as speech. I’m going to make a
very unpopular appeal to saying we need to talk
about the Spence Test more. Which nobody ever wants to do. So the Spence Test,
some of you may know, that we used to care a
little bit about whether or not speech was protected, even if
we’ve accomplished the speech conduct analysis. Which we’ve also forgotten how
to do, because the internet. So the speech conduct problem,
the O’Brien questions, all the rest of it, we’ve
acted as if they’re resolved. That’s a problem. But even if we’ve decided that
something is speech and not conduct, or it’s
expressive enough conduct to count
as speech, we’ve abandoned any attempt to try to
say, does that mean everything? And the Spence Test, as
poorly maybe as it did, it tried to do that. To say, look, you can’t
discount something as speech because it doesn’t seem
like anything else. It has to be that there’s
some kind of message that a reasonable person
would be able to understand. So what is the
message that’s being sent by certain types
of controversial speech? I think if we asked that
question a bit more, we’d get a better analysis
of what we’re actually trying to do when we decide
what is protected by the First Amendment and what is not. And the first thing
that we’d have to say about the First Amendment
to get to a moment of honesty is to stop telling
ourselves that we have this absolutist
protection to it that we never, ever
interrupt, except for these sacred categories that
have always been around. Because frankly,
those categories haven’t always been around. They’re some of the
stupidest reasons to not protect speech, right? Obscenity is a dumb category. We should give up on that one,
put something else in its place if we’re only
going to have five. But also, to think
about the fact that if we think about the
historically traditionally unprotected forms of
speech, well, then we’ve got a child pornography problem. Because that’s the 1980s,
when the courts figure out that there’s some
kind of analysis we’re doing there that doesn’t
fit into anything else. But somehow, we’ve determined
that kind of speech is too harmful. Even though, literally,
it doesn’t harm anyone. Right? The reproduction of the imagery,
as opposed to the creation of the imagery. So I think what both of your
questions are pointing to is we need a radical reaccounting
of First Amendment doctrine. Get clear on some of these
issues about the distinctions between speech and conduct. And to clarify the
fact that we don’t protect all forms of speech. We only protect
certain forms that actually have a real message. And then we’d actually
get some clarification when it comes to the
intersection of the First and the Second Amendment. JOSH BLACKMAN: Darrell, you
asked a very good question. And that was the subject of
the first paper I wrote, right? When is data speech? This comes up with the
antitrust conflict, right? FCC wanted to register
search results. People said no. We’re expedient, right? And at what point
does code become unprotected I think is a
tough but important question. Where I begin to draw the line
is how much human interaction is actually required. It’s something completely
autonomous, right? I just push a button,
and a gun pops out. Like, the same way
you go to 7-eleven. You push a button, and
coffee comes out, right? That sort of machine code
that x people code I think may not be protected. And I made this point publicly. But the sort of code we
have here is a lot easier. It’s visual. It’s graphic. You can see it. You represent it. You can modify it. You can tweak it. You can do lots of things to it. So that’s why I said it’s
possible to draft a law where certain types of code
could be regulated. But the sort of code at issue
in our case is not there. It’s very expressive. It’s well within the
bounds of Brown versus EMA and other cases like that
of what we protected. JOSEPH BLOCHER: Please join
me in thanking the panelists. [APPLAUSE] Absolutely. And my–