A thought experiment where the First Amendment is regulated like the Second

This is a thought experiment, and it is satire. Everything in the imaginary country of Licensia below is invented, no part of it is a news report, and no real law, office-holder or event is described. The point of the exercise is to take real rules that some places apply to guns, and apply them, one at a time and with a straight face, to speech. If any of it sounds absurd, hold on to that feeling, because you are meant to ask why the same rule sounds sensible when it is applied to the other right.

Welcome, then, to Licensia, a republic of reasonable people who have never met a form they did not like.

Rule one: a license to blog

In Licensia you may speak freely, with a few reasonable conditions. Before you may publish anything more public than a note on the refrigerator, you must obtain a Publisher's License. The application is eleven pages. It requires two passport photographs, fingerprints, a character reference from someone who is not related to you and who does not live in the same household, and a fee. There is a mandatory eight-hour course on the responsible use of adjectives, taught by an instructor certified by the state.

The grounding in real life is the permit-to-carry system that many states use, with its application, fingerprints, training course and fee. The fee in Licensia is modest, say a few hundred dollars every five years, which the Ministry of Expression assures everyone is "no barrier at all." A freelance writer who earns less than that in a month is welcome to disagree, but she will have to do it in a note on the refrigerator.

The Ministry would like it known that no one is being deprived of the right to speak. They are only being asked to prove they deserve it first.

Rule two: a waiting period on op-eds

Under the Cooling-Off Act, an op-ed may not be printed until ten days after it is submitted. The legislators who passed it explain that a writer in the heat of anger might say something he would regret, and that the delay allows reflection. The editors of Licensia's newspapers have noted that this has made the op-ed page a kind of archaeology, since a column about Tuesday's news now appears on the second Friday after, by which time the news has been replaced by another set of facts. The Ministry says this is a feature, since by then no one is upset enough to read it.

The real-life root is the waiting period that some states impose between the purchase of a firearm and its delivery. The argument for it is that a delay may prevent an impulsive act. The argument against it is that a woman who has just been threatened by a stalker needs the means of protection today, not next Thursday. In Licensia, the same logic is applied to a tweet. A man who has just heard that his city council is raising taxes must wait ten days before he can say that he disagrees.

Rule three: may-issue permits for printing presses

In the Free Republic of Licensia, a person who owns a printing press must obtain a permit from the county Press Commissioner. The statute says the commissioner "may" grant the permit if the applicant shows a "proper reason" to print. A good reason is "I am the commissioner's cousin." A bad reason is "I have something to say."

Note that this one is the closest to history, and for that reason the least funny. Before New York State Rifle & Pistol Association v. Bruen in 2022, several states issued carry licenses only when an official found that the applicant had a special need, often called "good cause" or "proper cause." The Supreme Court held that a state may not condition the right to carry a handgun in public on a showing of special need.

The same fight over licensing has an older history in speech. In 1644 John Milton published Areopagitica, a pamphlet against a licensing order of Parliament that required a license from an official before a book could be printed. England let its licensing law lapse in 1695, and the colonists inherited the lesson. In Lovell v. City of Griffin (1938) the Supreme Court struck down an ordinance that required a permit to distribute pamphlets, and in Near v. Minnesota (1931) it condemned prior restraints. A press-license law in America would be unconstitutional the day it was introduced. A carry license that depended on an official's showing of need was, in several states, the law until Bruen said otherwise.

Rule four: a limit of ten words per sentence

The Magazine Capacity Act of Licensia restricts any sentence to ten words, and any paragraph to ten sentences. The legislature explains that sentences of more than ten words are "high-capacity," and that no citizen needs more than ten words to make a point. The government's most celebrated speech, announcing the new rule, was nine words long, and it was followed by four hours of questions.

In real life, some states limit the number of rounds a magazine may hold, with ten and fifteen among the limits used. Those limits are defended on the theory that if a shooter is forced to reload, a few seconds of delay will save lives. They are criticized by those who point out that a person defending a home against several intruders is not at leisure to reload, and that the number ten has no basis in the Constitution. The Licensian response to complaints that a sentence of ten words cannot hold a subordinate clause is the same: "Nobody needs it."

A person could ask how the government knows what nobody needs. The Ministry has an official answer: because the government decided.

Rule five: a ban on scary-looking fonts

This is the favorite of the Licensian legislature. Under the Assault Typeface Prohibition, a font is illegal if it has any two of the following features: a serif that looks like a bayonet, a boldface that looks tactical, a condensed width suitable for a military sticker, a title in all capitals, and a flash suppressor, which in typography is a font that has a glow. Comic Sans is exempt because of its history of unthreatening use. Helvetica Bold is banned in its heavy weight but permitted in its regular weight, which the Ministry explains is "a completely different font."

The grounding here is the federal ban of 1994, which ran from 1994 to 2004. It defined an "assault weapon" not by how a firearm functioned but by a list of cosmetic and accessory features. A semi-automatic rifle with a detachable magazine and two or more of the listed features, such as a folding or telescoping stock, a pistol grip, a bayonet mount, a flash suppressor or a grenade launcher mount, was banned. The same rifle without those features, firing the same bullet at the same rate, was legal. assault weapon, ghost gun, arsenal, how news vocabulary does the arguing takes that vocabulary apart.

The Ministry also notes, without embarrassment, that the ban expired in 2004, and that Licensia's typographers have devised a font called "Reasonable Serif" that has exactly the same letters with one change to a curve.

Rule six: one op-ed a month

In an effort to stop mass publication, Licensia limits a citizen to a single published piece per thirty days. This is called the One-Op-Ed-A-Month rule, and it is based on a rule that some states have adopted limiting purchases of handguns to one per month. The idea is to stop "bulk" purchases that supply illegal markets. The result, in the Licensian version, is that a reasonable writer who has something to say about a bridge and something else to say about a school must choose.

When asked how many people the one-per-month rule has stopped from bulk publishing, the Ministry said that the number was not tracked, but that the rule "feels like it is working."

Rule seven: no speech in sensitive places

Speech is prohibited in all "sensitive places": schools, government buildings, polling places, parks, public transit, bars, libraries, stadiums, hospitals and any place within a thousand feet of a sensitive place. The result is that a citizen may speak freely in his own bathroom, and in the empty lot behind the hardware store.

In real life, the Supreme Court in Heller said that its decision did not cast doubt on laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, and in Bruen it said that courts could use analogies to historical sensitive places to decide new cases, while warning against treating all of public life as a sensitive place. The fight is over where to draw the line. In Licensia, there is no line, because every place is sensitive to someone.

Why the experiment is unfair, and why that is the point

The reader may object that the experiment is unfair to the other side. Speech does not kill, the objection goes; a gun does. A fair-minded person should take that seriously. The Constitution protects speech and arms in different ways, and the government has more latitude in some respects with firearms, because a firearm can cause immediate physical harm. Nobody serious claims that a law against threatening someone with a gun is the same as a law against criticizing the mayor.

But notice the structure of the objection. It is an argument about which regulations are justified, and in the First Amendment we have an elaborate body of law for deciding that. A government may punish a true threat or incitement to imminent lawless action, as Brandenburg v. Ohio (1969) put it, and it may not punish speech simply because it is offensive or dangerous in the abstract. The government must meet a heavy burden to justify a restriction. For the Second Amendment, the Court has said the right must be treated the same way.

In McDonald v. City of Chicago (2010), a plurality of the Court wrote that the Second Amendment is not "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees." In Bruen, the Court quoted that line and held that the Second Amendment must be treated like other rights, with the government bearing the burden of justifying restrictions by reference to the historical tradition of regulation. That is the whole point of the satire. Nobody in Licensia thinks of a speech license as an ordinary regulation, and nobody should think of a carry license as one either, at least not on the theory that rights are things that officials hand out.

Four fair points, and the argument they support

Let me put the point as a short sequence, because even a satire should end with a thesis.

1. Rights are not privileges. A right that must be requested, justified and renewed is a privilege with the word "right" on the door.
2. Fees and delays are burdens. A fee that is modest to a lawyer may be prohibitive to a night-shift worker, and a delay that is a nuisance to one person may be fatal to another. The courts have long recognized that fees and delays can burden speech and religion; the same principle applies here.
3. Cosmetic rules do not track function. A ban on features that have nothing to do with how a firearm operates is a ban on a look, not on a danger.
4. The government bears the burden. In the First Amendment, the government must justify a restriction. In the Second, until recently, the rule was often the reverse, with the citizen required to justify the exercise of the right.

None of these points means that every gun regulation is invalid. The Constitution permits a wide range of laws, as Heller said: bans on possession by felons, limits on carrying in sensitive places and conditions on commercial sales. The claim is only that the rights in the Bill of Rights should be on the same footing.

For further reading on how the Court has treated speech, see Brandenburg v. Ohio Protected a Klansman's Speech, and It Protects Yours Too, and for the broader point that the Bill of Rights is a unit, The right of the people means the same thing in the First, Second and Fourth and Eight Myths About the Bill of Rights That Civics Classes Keep Repeating. For the story of how the Court first applied these rights to the states, see How the Bill of Rights Came to Bind the States, One Right at a Time. And if a policy sounds more reasonable when it is applied to guns than when it is applied to speech, Language Policing Turns Ordinary Words Into Offences, and It Never Ends shows where the first one can lead.

The case in brief

1. This was a thought experiment: no such country exists, and every rule in it is a real gun rule applied to speech for the sake of comparison.
2. Permit requirements, waiting periods, discretionary licensing, magazine limits, feature bans, one-a-month limits and sensitive-place bans each have real counterparts in gun law.
3. Speech and press licensing was rejected in England in 1695 and in America by cases such as Near and Lovell, and the same logic applies to discretionary carry licensing, which Bruen ended.
4. McDonald and Bruen say the Second Amendment is not a second-class right and must be treated like the rest of the Bill of Rights.
5. Equal footing does not mean no regulation: Heller leaves room for bans on felons, sensitive places and commercial conditions.

What you can do: take one gun rule in your state, such as a waiting period or a permit fee, and ask yourself whether you would accept the same rule for a newspaper or a church, then say so to your state legislator.