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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.)

  • What kind of answer would you accept here? I could point out, for example, that there is a good deal of consistent legal precedent talking about first amendment restrictions, but not so much with second amendment restrictions, but is that a cause necessarily? "Why do legislators behave a certain way" is often a difficult or impossible question to answer unless there's something specific at play. – Avi May 31 '15 at 15:54
  • @Avi, I'd accept a very wide range of types of answer, including answers that focus on history, philosophy, tactical political advantage or legal precedents. I can imagine a possible answer along the lines that the wording of the two amendments differ in terms of ambiguity - but the fact that I can imagine a thing does not mean it actually had any importance. I agree that the question may perhaps be impossible to answer - it was the fact that I could not answer it myself that led me to ask it. Nonetheless, questions about why legislators behave a certain way are the very stuff of politics. – Lostinfrance May 31 '15 at 16:18
  • A related question to my one regarding the 1st and 2nd amendments is why all the other amendments seem to be now, and have been historically, very evenly treated in laws across the different states, with the exception of laws regarding alcohol. Or are there significant differences of which I am unaware? – Lostinfrance May 31 '15 at 16:26
  • there are some meaningful differences with regards to 4th amendment rights in particular. I think it mostly has to do with the specificity of court precedent, which has protected freedom of expression very well. – Avi May 31 '15 at 16:45
  • It's an apples and oranges question. Yes, they're both amendments, but that's about the only correlation between them. – user1530 May 31 '15 at 20:14
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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.

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    For what it's worth, there has been precedent as far back as 1897 (Robertson v. Baldwin) upholding laws about concealed carry and other regulations. DC v. Heller is just the first time the SCOTUS did a major review of it. – Bobson Jun 3 '15 at 18:39
  • One point that might be worth adding is that it seems to me that the second amendment does not have rigorous definitions and that allows for interpretations that can be argued about. Is "bear arms" satisfied by allowing single action low calibre hunting rifles or does is mean anyone should be able to own a heavy machine gun? What about the miliia? If it doesn't mean anything why is it there? Can the right to bear arms be restricted and if so under what circumstances? Some insane people are judged dangerous and locked up. Does this mean that some people can be restricted from owning guns? – Eric Nolan Sep 5 '18 at 15:16
  • @EricNolan obviously there's been a lot of (justified) debate about the meaning of "bear arms". But there's plenty to debate about what constitutes free speech as well, especially considering how abstract the concept is (all of the following constitute forms of speech: speaking, writing, actions, and, according to some Supreme Court justices, spending money...) – Andy Sep 6 '18 at 5:06
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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.

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    "the laws are clear that speech that might cause harm (e.g. yelling "Fire" in a movie theater) is not protected." - Two things. First, it's also clear that using a gun in a way that causes harm is unprotected; shooting people (or even being reckless with a gun) is clearly illegal unless it's self-defense. Second, not all speech that causes harm is unprotected; if I tell people that a politician is racist, it might harm the politician (although not physical harm), but it's protected and NOT considered slander. So are those really differences? – D M Dec 31 '17 at 17:41
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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.

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