First Amendment Homesickness, Second Amendment Homecoming: Hannah Arendt and 501(c) Militias.

In this article we argue that Justice Kennedy, Citizens United's critics, and the modern pro-gun movement all share the same homesickness: a longing for the lost promises of the Framers' First Amendment. This ache was anticipated by refugee political philosopher Hannah Arendt, who longed not for her native Germany but for a post-revolutionary America in which true political freedom (for some) was successfully established by the Framers. The pro-gun movement's answer to this homesickness has been a Second Amendment "homecoming," seeking freedom in the personal right to bear arms. However, the outcome of Defense Distributed v. U.S. Department of State, a recent case about 3D printable gun codes, illustrates why the gun rights answer is misguided as it entangles the two amendments. Drawing on Arendt's notion of freedom, as opposed to liberty, this paper argues that a proper response to the current crisis in the jurisprudence of the First and Second Amendments should entail the understanding that: (I) "freedom of speech" should only protect speech-acts that concern public interest; and (II) "the security of a free State" requires adequate access to the infrastructures that make speech possible through an equitable distribution of power. As this paper concludes, by developing atomic weapons, the government has "constructively taken" the people's "right to keep and bear Arms," and guns are simply not a plausible remedy. Accordingly, this paper suggests a model for how the government may provide a "just compensation" for this "taking" as required by the Fifth Amendment's "taking clause." The model demands that equal to a portion of the defense budget should be diverted annually to publicly fund 501(c) non-profit organizations, modern-day "well-regulated Militias" that distribute freedom across society. [ABSTRACT FROM AUTHOR]