{"id":113550,"date":"2025-11-26T17:29:19","date_gmt":"2025-11-26T23:29:19","guid":{"rendered":"https:\/\/milesfortis.com\/?p=113550"},"modified":"2025-11-26T17:29:19","modified_gmt":"2025-11-26T23:29:19","slug":"113550","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=113550","title":{"rendered":""},"content":{"rendered":"

Courts Broadly Interpret the 1st Amendment, While Hypocritically Limiting the 2nd Amendment \u2013 FourG<\/a><\/p>\n

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While judges act like their restrictive interpretation of the Second Amendment is in accordance with constitutional law, they hypocritically don\u2019t 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.<\/span><\/p>\n

In contrast, the Second Amendment (even after the landmark <\/span>District of Columbia v. Heller\u00a0<\/em>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\u00a0<\/span>Heller<\/em>, the courts have continued chipping away at the Second Amendment.<\/span><\/div>\n
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Both amendments make it very clear they cannot be regulated away. The First Amendment states in part,\u00a0<\/span>\u201cCongress shall make no law\u2026abridging the freedom of speech.\u201d<\/em>\u00a0The Second Amendment provides, \u201cthe right\u2026to keep and bear Arms,\u00a0<\/span>shall not be infringed<\/span>.\u201d So why is one treated as if it comes with caveats but not the other?<\/span><\/p>\n

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 \u2014 time, place and manner restrictions must be content neutral.<\/div>\n<\/div>\n
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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\u00a0<\/span>Heller<\/em>, the court stated that\u00a0<\/span>\u201cdangerous and unusual\u201d<\/em>\u00a0weapons could be banned, and firearms could be banned in \u201csensitive places\u201d such as schools and government buildings.<\/span><\/p>\n

Instead of applying strict scrutiny to firearms regulations \u2014 which would invalidate almost all firearms regulations \u2014 lower courts after <\/span>Heller\u00a0<\/em>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\u2019t need to be the least restrictive means.<\/span><\/div>\n<\/div>\n
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In a recent case from 2022,\u00a0<\/span>New York State Rifle & Pistol Association, Inc. v. Bruen<\/em>, the Supreme Court backed off from the lower courts\u2019 two-step test, replacing the second step with requiring that the government show how the regulations are\u00a0<\/span>\u201cconsistent with this Nation\u2019s historical tradition of firearm regulation.\u201d<\/em>\u00a0Ruling 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.<\/span><\/p>\n

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.<\/div>\n<\/div>\n
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The Supreme Court unanimously held in the 1969 case\u00a0<\/span>Brandenburg v. Ohio<\/em>\u00a0that 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\u2019s Criminal Syndicalism Act for a speech at a rally that included threats against government officials and called for\u00a0<\/span>\u201crevengeance<\/em>\u201c<\/span>\u00a0if suppression continued. SCOTUS ruled that the law was unconstitutional.<\/span><\/p>\n

Considering much of the justification for restricting the Second Amendment comes down to preventing violence, this distinction is strange.<\/div>\n<\/div>\n
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The Supreme Court\u2019s interpretation of the First Amendment\u2019s protections has expanded over the years. It\u2019s almost impossible for a public person to win a defamation or libel lawsuit, since the Supreme Court ruled in the 1964 case\u00a0<\/span>New York Times v. Sullivan\u00a0<\/em>that the plaintiff must prove\u00a0<\/span>\u201cactual malice<\/em>,\u201d\u00a0<\/span>which means knowledge of falsity or reckless disregard.<\/span><\/p>\n

Commercial speech used to be unprotected. Now, it receives intermediate scrutiny after SCOTUS\u2019 1980 ruling in <\/span>Central Hudson Gas & Electric Corp. v. Public Service Commission.<\/em><\/div>\n<\/div>\n
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Hate speech, flag burning, violent video games and lies about military honors are all protected now.<\/span><\/p>\n

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\u201320-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.<\/strong><\/div>\n<\/div>\n
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Judges justify the hypocrisy by pointing to the need to prevent gun deaths. According to the\u00a0<\/span>Centers for Disease Control and Prevention<\/a><\/strong>, 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\u00a0<\/span>lower\u00a0<\/a><\/strong>overall violent crime rates. This reveals that judges are making decisions based on emotion, not relying on a purely constitutional analysis.<\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Courts Broadly Interpret the 1st Amendment, While Hypocritically Limiting the 2nd Amendment \u2013 FourG While judges act like their restrictive interpretation of the Second Amendment is in accordance with constitutional law, they hypocritically don\u2019t apply the same narrow interpretation to the First Amendment. Courts read the First Amendment to create a presumptive immunity for expression, … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,21,8],"tags":[],"class_list":["post-113550","post","type-post","status-publish","format-standard","hentry","category-courts","category-hypocrisy","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/113550","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=113550"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/113550\/revisions"}],"predecessor-version":[{"id":113551,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/113550\/revisions\/113551"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=113550"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=113550"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=113550"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}