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Abstract
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Public perceptions motivate policymakers. They regulate to preserve certain perceptions, such as that of a fair judiciary, and to prevent others, such as public offense. They also respond when the public perceives a danger--for example, from gun violence. But what is the role of perceptions in defending regulations challenged as violating constitutional rights? Intuition may suggest that trying to shape perceptions should have a minimal role, if any at all, in the constitutional analysis. But existing doctrines paint a more nuanced picture, sometimes categorically rejecting and other times permitting shaping perceptions as a valid reason to regulate.
Legal scholarship has explored the interplay between public perception and the law, but has not compared the ways First and Second Amendment doctrine treat perception-based justifications. This article begins to fill that gap. The comparison is increasingly relevant after the Supreme Court's landmark Second Amendment decision in District of Columbia v. Heller because courts are looking to the First Amendment for guidance as they implement the right to keep and bear arms. Thus,it makes sense to consider the two Amendments in tandem even if, as this article concludes, the comparison highlights reasons to treat them differently.
Categorical rules in First Amendment free speech doctrine block regulations intended to influence certain perceptions. To take one example, the government generally cannot regulate speech simply because it would be perceived as offensive. Yet regulating speech to influence other perceptions is not categorically barred. Preserving certain public perceptions, like that of judicial integrity, can justify speech regulations under heightened scrutiny without the need to prove actual harm--imminent or otherwise--to a fair justice system. In the Second Amendment context, meanwhile, as doctrine has developed in the nine years since the Supreme Court articulated an individual right to keep and bear arms in Heller, some courts have accepted preserving perceived safety from armed violence as a legitimate reason to regulate. Most prominently, the Seventh Circuit upheld a ban on assault weapons and large capacity magazines in part because the ban "reduces the perceived risk from a mass shooting, and makes the public feel safer as a result." The validity of that objective was questioned, including by Justices Clarence Thomas and Antonin Scalia, who dissented from the denial of certiorari in the case. What role, if any, the perception of safety should play in Second Amendment analysis is an open issue, ripe for scholarly attention.
This article proceeds in three parts. Part II sets the stage by defining "perception," and observing how in circumstances in which no constitutional right is implicated deferential standards of review are generally indifferent to whether regulations are intended to shape perceptions.
Part III turns to speech regulations, where limiting speech to shape perceptions has been declared categorically unconstitutional, but only in certain circumstances. Part III considers one theory of First Amendment doctrine--that its goal is to smoke out ideological censorship9--which may explain the seemingly inconsistent approach.
Part IV shifts to consider firearm restrictions intended to preserve the perception of safety. Second Amendment doctrine has not settled the question of when, if ever, influencing perceptions can justify arms restrictions, and courts will look to the First Amendment for doctrinal guidance. First Amendment doctrine likely would reject preserving the perception of safety as a valid regulatory objective for a speech restriction. But historical weapons regulations and distinct Second Amendment values and risks suggest that perceived safety has a more legitimate regulatory role in the firearm context. Part IV concludes by discussing some pragmatic considerations, like avoiding baseless perceptions, which may limit when and how perceived safety can justify a gun safety regulation.
Availaable: https://scholarship.law.duke.edu/lcp/vol80/iss2/7
Language: en |