The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured. Looking at these state provisions, he suggests, can shed light on how the similarly structured Second Amendment should be interpreted. In particular, the provisions show that constitutional rights will often—and for good reason—be written in ways that are to some extent overinclusive and to some extent underinclusive with respect to their stated justifications.
I’m deeply flattered that David Williams chose to reply to my Article. His response is thoughtful, gracious, and, most important, direct: It frankly sets forth its conclusion, which is that the Second Amendment is “outdated” and “meaningless.” A part of the Bill of Rights has mysteriously vanished. This is a remarkable proposition. After all, supposedly “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”‘
The “best interests of the child” test—the normal rule applied in custody disputes between two parents—leaves family court judges ample room to consider a parent’s ideology. Parents have had their rights limited or denied partly based on their advocacy of atheism, racism, homosexuality, adultery, nonmarital sex, Communism, Nazism, pacifism and disrespect for the flag, fundamentalism, polygamy, and religions that make it hard for children to “fit in the western way of life in this society.”
Courts have also penalized or enjoined speech that expressly or implicitly criticizes the other parent, even when the speech has a broader ideological dimension. One parent, for instance, was ordered to “make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic,” because the other parent was homosexual. Another mother was stripped of custody partly because she accurately told her 12-year-old daughter that her ex-husband, who had raised the daughter from birth, wasn’t in fact the girl’s biological father.
Courts have also restricted a parent’s religious speech when such speech was seen as inconsistent with the religious education that the custodial parent was providing. The cases generally rest on the theory (sometimes pure speculation, sometimes based on some evidence in the record) that the children will be made confused and unhappy by the contradictory teachings, and will be less likely to take their parents’ authority seriously.
This article argues these restrictions are generally unconstitutional, except when they’re narrowly focused on preventing one parent from undermining the child’s relationship with the other. But in the process the article makes several observations that may be helpful whether or not readers endorse this proposal: (1) The best interests test lets courts engage in a wide range of viewpoint-based speech restrictions. (2) The First Amendment is implicated not only when courts issue orders restricting parents’ speech, but also when courts make custody or visitation decisions based on such speech. (3) Even when the cases involve religious speech, the Free Speech Clause is probably a stronger barrier to the judge’s penalizing the speech than are the Religion Clauses. (4) If parents in intact families have First Amendment rights to speak to their children, without the government’s restricting the speech under a “best interests” standard, then parents in broken families generally deserve the same rights. (5) Parents in intact families should indeed be free to speak to their children—but not primarily because of their self-expression rights, or their children’s interests in hearing the parents’ views. Rather, the main reason to protect parental speech rights is that today’s child listeners will grow up into the next generation’s adult speakers. (6) Attempts to allow restrictions only when the speech imminently threatens likely psychological harm (or even causes actual psychological harm) to children may seem appealing, but will likely prove unhelpful.