Why do US local laws vary so much regarding the Second Amendment but so little regarding the First Amendment?

Question

The Second Amendment to the US Constitution protects the right to keep and bear arms. Although the Constitution applies to all the United States, individual States, cities and other jurisdictions vary extremely widely as to the gun laws in place, from guns practically being prohibited in certain cities to almost complete freedom to carry any sort of a gun in some states.

The First Amendment forbids the establishment of a religion and protects freedom of speech. It too applies to the entire United States. Yet there are very few variations by state or city as to how it is applied, either regarding the establishment of religion or the freedom of speech aspects. There are no states which have particularly harsh local laws against free speech, for instance. Where freedom of speech is abridged in America it seems to be at the level of particular institutions, e.g. some universities, not at the level of particular jurisdictions.

I am not seeking to argue about whether either amendment is a good thing, just to understand the legal, political or historical reasons why one is so evenly reflected in local law and one so unevenly.

(I am not American and lack a detailed knowledge of US law. I am aware that some states did at one point in history have an established religion.)

Answer 1

The precedent for the second amendment is newer than the first amendment. District of Columbia v. Heller was ruled in 2008, which held that the clause about a well-regulated militia is irrelevant to the meaning of the second amendment. This was further expanded in 2010 to apply to states via the fourteenth amendment in McDonald v. Chicago. This means that States laws have only recently started to be sorted out into what can and cannot be done. This is complicated by the fairly substantial dissent primarily from Democrats in regards to the ruling in District of Columbia v. Heller.

In contrast the much of the precedent surrounding the first amendment has existed for years, Citizens United v. FEC in 2010 is the only major ruling in regards to the first amendment in about 20 years or so, and that was related to federal law. It should also be noted that the first amendment was first applied to all states in 1925 via the 14th amendment in Gitlow v. New York.

Answer 2

I think the answer to why there is so much variation is simple. Offensive speech does not cause physical harm, and the laws are clear that speech that might cause harm (e.g. yelling "Fire" in a movie theater) is not protected. There is not much incentive to restrict speech because there are so many precedents striking down restrictions, and the consequences of speech are not physical harm. OTOH, firearms were created specifically to kill or injure animals and people, so when they are misused there are deadly consequences for innocent citizens. This prompts local jurisdictions to create regulations in an attempt to mitigate the risk. Various jurisdictions suffer different degrees of risk, and so the legislation proposed varies widely: Large cities are much more likely to impose restrictions than rural areas with a strong hunting culture and lower crime rate. The courts have permitted some regulation of gun ownership in the interest of public safety, and so it is not as clear cut what is constitutional. The second amendment is very terse and the authors did not anticipate the development of technology, so it leaves many situations unanswered. Surely everyone but the most radical second amendment proponents agree that citizens should not be able to possess a nuclear weapon, even though that is technically an "arm". If we agree that a mentally unstable person or a convicted violent criminal should not own a firearm, then we need a system in place to prevent them from obtaining one. These are examples of the government preventing some citizens from obtaining some types of arms, which seems to conflict with the second amendment. Deciding which restrictions are constitutional is not nearly as simple as regarding speech.

Answer 3

I am not familiar with all the intricacies of US law but one answer could be that free speech is a much more consensual principle.

If all states are happy to leave it alone and to go above and beyond the standard set by the constitution and the supreme court, you would expect the rules to be broadly similar and constitutional law to be less relevant.

On the other hand, for weapons, views seem to differ more widely. So some jurisdictions could be tempted to test the limits of the constitutional guarantees while other would be much more permissive, based on local politics, and not directly on the constitution.

Generally speaking, the Bill of Rights and many other similar texts (including international human rights treaties) mostly define a baseline but do not prevent states to go further. They are not aiming at convergence, only at protecting basic rights that no jurisdiction should infringe.

On a related note, the European Convention on Human Rights has 18 articles and a few protocols but a handful of them (right to liberty and security, prohibition against inhumane and degrading treatment) account for most of the cases in front of the Strasbourg court. Some articles are practically never invoked (right to marry, prohibition of slavery, no punishment without law) because those principles are narrower and not really threatened anywhere in Europe.