A First Amendment Case With Second Amendment Teeth
The Supreme Court just handed the Second Amendment community one of its most useful tools in years — and it came from a case about talk therapy, not guns.
In Chiles v. Salazar, decided 8-1, the Court struck down a Colorado law that prohibited licensed counselors from engaging in so-called conversion therapy. Kaley Chiles, a licensed talk therapist, wanted to counsel clients questioning their gender identity without being forced into a single approved viewpoint. Colorado said her conversations were “professional conduct,” not speech, and therefore fell outside First Amendment protection.
The Supreme Court, through Justice Neil Gorsuch, was having none of it. Gorsuch pointed to Judge Harris Hartz’s dissent at the Tenth Circuit, which had correctly observed that Colorado’s law, as applied to Chiles, “regulates only what she may and may not say.” The majority embraced Hartz’s characterization that the effort to recast Chiles’s speech as professional conduct “amounted to little more than a labeling game.”
That phrase — “labeling game” — should send a chill through every anti-gun jurisdiction in America.
The Constitutional Shell Game
Here is the key language from Justice Gorsuch’s opinion:
Her speech does not become conduct just because the state of Colorado may call it that. Nor does her speech become conduct just because it can also be described as a “treatment,” a “therapeutic modality,” or anything else for that matter. The First Amendment is no word game, and the rights it protects cannot be renamed away or their protections nullified by mere labels.
Read that last sentence again. Constitutional rights “cannot be renamed away or their protections nullified by mere labels.” That is not a principle limited to the First Amendment. It is a statement about how the entire Bill of Rights operates.
Now apply it to what every state with an assault weapon ban does. An ordinary semi-automatic rifle — functionally identical to the semi-automatic handguns the Court held were protected in District of Columbia v. Heller — gets reclassified as an “assault weapon” because it has a pistol grip or an adjustable stock. A standard-capacity magazine, the one that ships from the factory with the firearm, gets relabeled a “large-capacity magazine.” Wave a legislative wand, change the name, and suddenly a constitutionally protected arm becomes contraband.
That is the exact same maneuver Colorado tried with speech. And eight justices just said it does not work.
A “Made-Up Category of Firearms”
This is ground I have covered before. In my article in the Harvard Journal of Law and Public Policy, “Assault Weapon” Bans: Unconstitutional Laws for a Made-Up Category of Firearms, I argued that the term “assault weapon” is not a factual or technical classification. It is a political propaganda label designed to place ordinary firearms outside constitutional protection. As I wrote, the Second Amendment’s protections “do not disappear merely because the anti-gun lobby chooses to label — or perhaps more accurately mislabel — these ordinary firearms as assault weapons.”
Justice Clarence Thomas has made the same observation, noting that “assault weapon” is “a political term developed by anti-gun publicists.” The Chiles majority now provides the doctrinal backbone for that critique. If the Court will not permit a state to relabel speech as conduct to escape the First Amendment, it will not permit states to relabel rifles as assault weapons to escape the Second.
What Comes Next
The timing could not be better. Multiple challenges to state assault weapon bans and magazine restrictions are working their way through the federal courts. The Supreme Court may take up an AR-15 ban case within months. When it does, Chiles v. Salazar will be front and center in the briefing.
The anti-gun side’s entire argument rests on the Court accepting a made-up statutory definition at face value. Eight justices just announced, in the clearest possible terms, that they will not play that game. They will look at what is actually being regulated, not what the government chooses to call it.
For the Second Amendment, that is very good news.
This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.