The Second Amendment is not Greater Than the First Amendment

THE SECOND AMENDMENT IS NOT GREATER 

THAN THE FIRST AMENDMENT

By Thomas Coffin 

The NRA and its political allies, such as the National Shooting Sports Foundation (NSSF) have essentially created the doctrinal fiction that the Second Amendment confers a virtually absolute individual right to own and possess firearms, including military grade firearms, regardless of their destructive power, the reality of their escalating criminal usage against innocent victims, and the fact that gun violence has become one of the leading causes of death among the population. 

Well-funded and organized, the NRA has evolved from a proponent of safety rules, training, education, and protocol at shooting ranges for beginners through experts to a heavyweight political voice in Washington as well as state capitals throughout the nation. It has been known to use its prestige and significant resources to target politicians who sponsor legislation that impacts the bottom line of the gun industry, which are profits. That influence is a significant obstacle to regulations necessary to curb gun violence and the lethality of the weaponry being introduced in commerce, and it also produced Congressional legislation conferring immunity protecting the entities that produce and sell the weapons (the PLCAA).

It is relevant and useful to compare this contorted model of the Second Amendment with its close cousin within the Bill of Rights—the First Amendment.

When I was serving our nation’s justice system as a judicial officer, I presided over a First Amendment case that implicated issues with strong parallels to Second Amendment analysis questions. I will summarize those parallels, but you can read the order here containing my complete ruling for the reader’s convenience and a more detailed analysis.

The First Amendment case concerned the publication and commercial sales of Hit Man: A Technical Manual for Independent Contractors which set out in intricate detail how to assassinate a targeted victim and get away with it, without leaving any evidence. The manual was published by Paladin Enterprises and was, in fact, purchased and used by assassins to kill and attempt to kill several victims, following the step-by-step instructions, including the type of gun, what part of the body to aim at, and other graphic details.

In the case before me, the target was an Oregon woman who separated from her husband and was about to divorce him. The husband was a subscriber to the Paladin magazine and purchased its Hit Man manual. He solicited an accomplice to help murder his spouse and split her life insurance with his co-conspirator. The attempt failed, but the target and her child were injured yet thankfully survived.

The victims sued Paladin Enterprises, the Hit Man publisher, which relied on the First Amendment as its defense, advocating the shield of the First Amendment’s free speech clause well as ignorance of the plot. I rejected that defense, in essence ruling that a jury could find from the evidence that the promotional tactics of Paladin, a prior suit against Paladin, and prior murders committed by purchasers of its manual were sufficient proof that it willingly aided and abetted the crime.

The parallels to the Second Amendment are on all fours. Just as the right to speech is not absolute (it doesn’t include speech that crosses boundary lines and aids criminal conduct, etc.), neither is the right to bear arms absolute. For example, protected speech does not apply when it knowingly encompasses the facilitation of insurrection or treason, and neither does the right to bear arms. (A major heresy in the NRA narrative is that the Second Amendment was enacted in part to enable citizens to rebel against its own Constitutional government, ignoring the fact that taking up arms against the government was defined as treason, e.g., armed insurrection, in the body of the Constitution.) 

In addition, just as proof of speech that is not protected by the First Amendment can be found in evidence of the promotional tactics and knowledge of the entity speaking or distributing the speech, the same type of evidence is applicable to the contours of the Second Amendment. With respect to the latter, it is noteworthy that gun industry representatives informed a Congressional committee that they did not keep statistics on the illegal uses of the firearms they sell. But deliberate ignorance is not a defense. It is rather intentional avoidance of knowledge that is easily available and a red flag of its criminal purpose. 

The motto “See No Evil” is a transparent betrayal of those lives that pay the ultimate cost of the transaction. Ironically, when I was an adolescent, I learned basic firearms safety protocols that the NRA emphasized when I was introduced to shooting firearms at the range. The motto then was the opposite: “Make Sure” that no one was downrange before firing at the targets. Today the targets are people, and the gun industry is promoting urban sniper rifles that will hit a human target within an inch of his or her heart from over 100 yards or more. But the merchants of death pretend, “We don’t know nothin’.”

P.S. Paladin Enterprises went out of business. May unethical gun merchants follow them.

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Thomas Coffin was the keynote speaker at the Blackberry Pie Society’s Political Party in February, 2020 and at Politics and Pie in October, 2022.  He is a retired federal magistrate judge for the U.S. District Court for the District of Oregon and a former professor at the UO Law School. Thomas retired in 2016 after 24 years on the bench, prior to which he had a career as a federal prosecutor spanning 21 years. He is married with 7 children.  

The Blackberry Pie Society is pleased to include a collection of his essays on our website.  We will post them as they become available.

posted 11.10.2023