William & Mary Bill of Rights Journal


Edward Lee


This Article examines the possible effect the Supreme Court's landmark Second Amendment ruling in District of Columbia v. Heller will have on future cases brought under the Free Press Clause.' Based on the text and history of the Constitution, the connection between the two Clauses is undeniable, as the Heller Court itself repeatedly suggested. Only two provisions in the entire Constitution protect individual rights to a technology: the Second Amendment's right to bear "arms" and the Free Press Clause's right to the freedom of the "press," meaning the printing press. Both rights were viewed, moreover, as pre-existing, natural rights to the Framing generation and were separately called during the Framing the "palladium of liberty" and essential to "the security of freedom in a state." The development of both concepts traces back to the abuses of the Crown in disarming the populace and restricting the printing press in England. During the seventeenth century, the people in England were deprived of both technologies-in the case of the printing press, by the copyright holders of the period known as the Stationers' Company, which conducted warrantless searches to seize unauthorized presses with the backing of the Crown. The Bill of Rights was enacted to stop these abuses in the new Republic. Both clauses developed in direct reaction to the perceived threat of government restrictions on the respective technologies. Given this historical connection, the analysis of the Second Amendment in Heller may provide a useful point of reference for the Court in future cases interpreting the Free Press Clause. Just as Heller held that banning handguns for the purpose of gun control violates the Second Amendment's core protection of the right to possess arms for self-defense, banning speech technologies for the purpose of copyright control violates the Free Press Clause's core protection of speech technologies for self-expression.