Should Justice Alito’s Views on Evolving Technology in the First Amendment Context Also Be Applied to Second Amendment Jurisprudence?

As anyone who has read this blog will know, I’m not a big fan of guns (I like ’em in my books or on a movie screen, but not on the street around me and my family.) For that matter, I’m not a big fan of the Second Amendment. I’m one of those people who believes that the militia clause of the Second Amendment has (or had…) a meaning. And I’ve always believed that guns and arms are one of the areas where the Founding Fathers simply could not fathom or anticipate what technological advances would bring. Remember that in the days of the Founding Fathers, guns were single shot muzzleloaders that took quite a while to load between each shot. Other than that, you could use a sword or a knife or maybe a bow. Cannons shot balls of steel and some simple explosives had been devised. But there is no way, I don’t think, that the founding fathers could have anticipated automatic rifles with an effective range of several hundred yards, with lasers to assist targeting, that could shoot multiple armor-piercing (and I’m talking Kevlar, not chainmail) bullets each second and which could be reloaded (after firing an enormous number of bullets) merely by switching out a compact or high-capacity magazine. Nor could they have contemplated Kevlar body armor, night-vision equipment, grenade launchers, or any of the host of other modern weaponry.

With that in mind, I found a portion of the Justice Alito’s limited concurrence in Brown v. Entertainment Merchants Ass’n, 564 U.S. ___ (2011) (with which Chief Justice Roberts joined) quite interesting. The case dealt with a California law that banned the sale of violent video games to children. (The Court ruled that California’s ban was an unconstitutional restrain on free speech, a decision with which I agree.) However, read the following portion of Justice Alito’s concurring opinion, but instead of thinking about video games and the right of a state to ban their sale to children, think instead about guns and the right of a state to limit the types of guns that may be purchased or to impose certain other reasonable restrictions upon their ownership.

In considering the application of un-changing constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution.

Finally, just for (fun) reference. This was what was meant by “arms” when the Constitution was written:

And this is an example of "arms" today:

Not sure about you, but I notice a slight difference.

Hence, I would argue that this language from Justice Alito’s concurrence is equally applicable to gun control legislation, perhaps even more so (after all, words and images don’t kill people; guns do). To paraphrase, we should not jump to the conclusion that automatic rifles with high capacity magazines firing armor piercing bullets aimed via laser targeting systems are fundamentally the same as single-shot muzzleloading flintlock rifles with which we are (and the Founding Fathers were familiar) and the courts should not hastily dismiss the judgment of legislators who may be in a better position than the courts to assess the implications of new technology.

I’m a big supporter of broad interpretation of the First Amendment and narrow interpretation of the Second Amendment. Does that make me a hypocrite? I don’t think so, but I’m willing to engage in the discussion. But it does seem to me that if Justice Alito and Chief Justice Roberts believe that we need to take notice of the societal implications of advancing technologies for First Amendment jurisprudence, then we should engage in a similar analysis vis-à-vis the Second Amendment.