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.