Category: Hypocrisy O’ The Day

Courts Broadly Interpret the 1st Amendment, While Hypocritically Limiting the 2nd Amendment – FourG

While judges act like their restrictive interpretation of the Second Amendment is in accordance with constitutional law, they hypocritically don’t apply the same narrow interpretation to the First Amendment. Courts read the First Amendment to create a presumptive immunity for expression, striking down regulations unless they survive the most stringent review. The First Amendment has always been broadly interpreted.

In contrast, the Second Amendment (even after the landmark District of Columbia v. Heller case in 2008 expanded it beyond a collective right to an individual one) has been treated as a limited individual right hedged by presumptively valid police-power regulations. And after Heller, the courts have continued chipping away at the Second Amendment.

Both amendments make it very clear they cannot be regulated away. The First Amendment states in part, “Congress shall make no law…abridging the freedom of speech.” The Second Amendment provides, “the right…to keep and bear Arms, shall not be infringed.” So why is one treated as if it comes with caveats but not the other?

The Supreme Court applies a rigorous standard of review to the First Amendment, strict scrutiny for content-based restrictions, which requires the government to demonstrate a compelling interest that is narrowly tailored. This is the highest level of scrutiny, and most restrictions fail the test. Laws regulating the First Amendment are presumed unconstitutional unless they have the narrowest possible tailoring — time, place and manner restrictions must be content neutral.

In contrast, longstanding regulations are presumed lawful when interpreting the Second Amendment. There is no requirement that time, place and manner restrictions be content neutral. Even in Heller, the court stated that “dangerous and unusual” weapons could be banned, and firearms could be banned in “sensitive places” such as schools and government buildings.

Instead of applying strict scrutiny to firearms regulations — which would invalidate almost all firearms regulations — lower courts after Heller developed a two-step test: assessing if a law burdens core protected conduct, then applying intermediate scrutiny. This requires an important governmental objective, such as public safety or reducing gun violence, and a reasonable fit between the law and the objective, which doesn’t need to be the least restrictive means.

In a recent case from 2022, New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court backed off from the lower courts’ two-step test, replacing the second step with requiring that the government show how the regulations are “consistent with this Nation’s historical tradition of firearm regulation.” Ruling that a state law which required a reason to obtain a concealed weapons permit was unconstitutional, the court said bans on assault weapons or large-capacity magazines were acceptable if analogized to historical limits, and the court allowed red-flag laws, mental-health prohibitions and domestic-violence restraints.

Courts have upheld laws that impose a 10-round magazine limit, safe-storage mandate, 5-day waiting periods and restricting someone with a stalking conviction from owning a firearm.

The Supreme Court unanimously held in the 1969 case Brandenburg v. Ohio that the First Amendment protects advocacy of illegal conduct unless it incites imminent lawless action. Clarence Brandenburg, a Ku Klux Klan leader, was convicted under Ohio’s Criminal Syndicalism Act for a speech at a rally that included threats against government officials and called for “revengeance“ if suppression continued. SCOTUS ruled that the law was unconstitutional.

Considering much of the justification for restricting the Second Amendment comes down to preventing violence, this distinction is strange.

The Supreme Court’s interpretation of the First Amendment’s protections has expanded over the years. It’s almost impossible for a public person to win a defamation or libel lawsuit, since the Supreme Court ruled in the 1964 case New York Times v. Sullivan that the plaintiff must prove “actual malice,” which means knowledge of falsity or reckless disregard.

Commercial speech used to be unprotected. Now, it receives intermediate scrutiny after SCOTUS’ 1980 ruling in Central Hudson Gas & Electric Corp. v. Public Service Commission.

Hate speech, flag burning, violent video games and lies about military honors are all protected now.

If the Supreme Court applied strict scrutiny to firearms regulations, they would fail due to the lack of historical tradition. Requiring a minimum age of 21 to own a firearm would fail, since 18–20-year-olds served in the 1791 militia. Red flag laws would fail, since there are no pre-deprivation hearings. Magazine limits would fail since there is no founding-era analogue. Many felons are nonviolent, so laws prohibiting their possession would fail as too broad.

Judges justify the hypocrisy by pointing to the need to prevent gun deaths. According to the Centers for Disease Control and Prevention, approximately 44,400 people died from gun-related injuries in the U.S. last year. However, when compared to a similar country, England (and Wales), which bans firearms, the U.S. has lower overall violent crime rates. This reveals that judges are making decisions based on emotion, not relying on a purely constitutional analysis.

It’s Not Fascism When We Do It

Hakeem Jeffries is threatening ICE agents.

“Every single ICE agent who’s engaged in this aggressive overreach and are trying to hide their identities from the American people will be unsuccessful in doing that,” House Minority Leader Hakeem Jeffries (D-N.Y.) said at a press conference Tuesday.

“This is America. This is not the Soviet Union. We’re not behind the Iron Curtain. This is not the 1930s. And every single one of them, no matter what it takes, no matter how long it takes, will, of course, be identified.”

 

And this would appear to be illegal.

18 U.S. Code § 119 – Protection of individuals performing certain official duties

In General.—Whoever knowingly makes restricted personal information about a covered person, or a member of the immediate family of that covered person, publicly available—

(1) with the intent to threaten, intimidate, or incite the commission of a crime of violence against that covered person, or a member of the immediate family of that covered person; or

(2) with the intent and knowledge that the restricted personal information will be used to threaten, intimidate, or facilitate the commission of a crime of violence against that covered person, or a member of the immediate family of that covered person,

(2) the term “covered person” means—

a State or local officer or employee whose restricted personal information is made publicly available because of the participation in, or assistance provided to, a Federal criminal investigation by that officer or employee;

ICE agents are covered against these threats that Jeffries made, and I hope Pam Bondi, the US Attorney General, is paying attention. There are those who have lost confidence in Bondi, but right now, she is the best hope conservatives have if we want to see justice applied evenly.

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SCOTUS to CASA to A.A.R.P.: In Case Of (Perceived) Emergency, Ignore The Rules, And Make Stuff Up
None of the usual rules will apply when the ACLU says there is an emergency.

The past 24 hours have been something of a Rorschach Test for the Supreme Court. In the birthright citizenship case, the Court made clear that in emergencies, the judiciary must retain the power to enter universal injunctions, even if Article III does not otherwise permit such injunctions. And in A.A.R.P. v. Trump, the Court made clear that in emergencies, the court should certify a class without going through Rule 23, and grant an ex parte tro without considering any of the usual TRO factors.

What lesson should lower court judges take away? In cases of perceived emergencies, forget all the rules and make stuff up. When the executive branch takes such actions we call it an autocracy. When the courts do it, they call it the “rule of law.”

I will have much more to say about this order in due course.

Comment O’ The Day
A multi millionaire who’s too good to wait in line at the airport like the rest of us peasants and is instead flying around on private jets is “fighting oligarchy” and climate change?

To be honest, I never considered LuPone an acting ‘superstar’, just another standard operational leftist hack that has to act onstage to provide themselves for short time the personality they lack.

Patti LuPone Is Huge Reason Why We Lack ‘Dissenting Views’
Broadway star bemoans loss of healthy debate, ignores her role in problem

Bill Maher is getting a lot of attention these days.

He didn’t rob a bank in broad daylight or make that Snake River jump that Evel Knievel couldn’t in 1974. Maher is willing to break bread with those who don’t align with his worldview. That’s it. That’s enough.

That simple approach today is novel, even revolutionary.

Broadway superstar Patti LuPone is sad about the lack of civil discussion in society. The progressive actress told fellow Broadway star George Clooney just that in their expansive Variety chat.

What I don’t understand about all of this in this country is that we can’t seem to have dissenting views. You’re labeled a communist. You’re labeled a fascist.

In a separate takeaway from their chat, the star bemoaned the lack of “dissenting views.”

“What I don’t understand about all of this in this country is we can’t seem to have a dialogue, a diverse dialogue or a dissenting views dialogue.”

She’s right. We just saw comic legend Larry David call Maher Hitler for daring to disagree with him. Yet LuPone is blind to the problem on two fronts.

One: She’s part of it.

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Democrats’ gun control/election integrity paradox

Does America’s future really depend upon background checks, draconian controls on buying guns and a national firearm registry?

Democrats seem to think so. Gun control, including measures that violate the constitutional right of Americans to keep and bear arms, is a central feature of their platform. In fact, Democrat-controlled jurisdictions, most recently Colorado, have imposed the harshest gun control measures in the nation.

However, one can argue that, unless voting is limited to identifiable, properly registered citizens in good standing, interests inimical to the American Republic can influence, even determine, federal and local election outcomes. Without secure elections, the future of the Republic is, indeed, at risk.

But, even though Democrats favor photo ID, background checks and waiting periods to purchase constitutionally-protected firearms, they reject the same and similar methods to ensure election integrity as “voter suppression.”

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