Doug Huffman
Banned
imported post
http://www.scotusblog.com/wp/wp-content/uploads/2008/02/07-290_amicus_libertylegal.pdf
SUMMARY OF ARGUMENT
The Second Amendment right at issue in this
case should receive the same judicial treatment as
other enumerated individual rights within the Bill of
Rights. Amicus United States posits an intermediate
scrutiny test as an all-encompassing test for analyzing
any restriction on the Second Amendment right.
The United States cites the need to prohibit “machineguns”
and the maintenance of other tertiary
regulations of gun ownership and gun commerce for
its advocacy of the intermediate scrutiny test. This is
the equivalent of advocating that, because of the
proliferation of adult book stores or out of control
commercial speech, the intermediate scrutiny tests
employed for such expressive activity should be
transposed to regulations of core political and religious
speech or even outright bans on First Amendment
activities altogether. Fortunately, this Court has
distinguished the exercise of First Amendment freedoms
and the context of the expression of those
freedoms.
It is unnecessary for a lesser level of scrutiny to
cast a long shadow across core protected Second
Amendment activity. Instead, the scope of Second
Amendment protection is determined by the type of
firearm and the activity for which the firearm is used.
Cf. R.A.V. v. City of St. Paul, 505 U.S. 377, 420 (1992)
(Stevens, J., concurring in judgment) (“The scope of
the First Amendment is determined by the content of
expressive activity. . . .”). First, categorical bans on all
gun ownership are per se unconstitutional. Second,
regulations of core protected firearms, such as those
descendent from the firearms regularly carried and
employed by citizens in the founding era, should
receive strict scrutiny analysis. Finally, there are
categories of speech that this Court has deemed
unprotected speech. Petitioners and Amicus United
States attempt to seize upon a perceived aversion to
machine guns and other weapons beyond this case in
order to justify applying a lesser level of judicial
scrutiny to all gun bans. That is the equivalent of
arguing that because there are words such as fighting
words or obscenity, all speech regulations should be
analyzed using diluted scrutiny. This is not the law.
5
There is no need for the Court to reinvent the
wheel when analyzing the Second Amendment with
decades of established individual rights analysis at
its disposal. Adopting a ‘one size fits all’ approach
instead of implementing the precision analytical tools
already established by and available to the Court
would lead to unartful analysis and an unnecessary
loss of freedom.
http://www.scotusblog.com/wp/wp-content/uploads/2008/02/07-290_amicus_libertylegal.pdf
SUMMARY OF ARGUMENT
The Second Amendment right at issue in this
case should receive the same judicial treatment as
other enumerated individual rights within the Bill of
Rights. Amicus United States posits an intermediate
scrutiny test as an all-encompassing test for analyzing
any restriction on the Second Amendment right.
The United States cites the need to prohibit “machineguns”
and the maintenance of other tertiary
regulations of gun ownership and gun commerce for
its advocacy of the intermediate scrutiny test. This is
the equivalent of advocating that, because of the
proliferation of adult book stores or out of control
commercial speech, the intermediate scrutiny tests
employed for such expressive activity should be
transposed to regulations of core political and religious
speech or even outright bans on First Amendment
activities altogether. Fortunately, this Court has
distinguished the exercise of First Amendment freedoms
and the context of the expression of those
freedoms.
It is unnecessary for a lesser level of scrutiny to
cast a long shadow across core protected Second
Amendment activity. Instead, the scope of Second
Amendment protection is determined by the type of
firearm and the activity for which the firearm is used.
Cf. R.A.V. v. City of St. Paul, 505 U.S. 377, 420 (1992)
(Stevens, J., concurring in judgment) (“The scope of
the First Amendment is determined by the content of
expressive activity. . . .”). First, categorical bans on all
gun ownership are per se unconstitutional. Second,
regulations of core protected firearms, such as those
descendent from the firearms regularly carried and
employed by citizens in the founding era, should
receive strict scrutiny analysis. Finally, there are
categories of speech that this Court has deemed
unprotected speech. Petitioners and Amicus United
States attempt to seize upon a perceived aversion to
machine guns and other weapons beyond this case in
order to justify applying a lesser level of judicial
scrutiny to all gun bans. That is the equivalent of
arguing that because there are words such as fighting
words or obscenity, all speech regulations should be
analyzed using diluted scrutiny. This is not the law.
5
There is no need for the Court to reinvent the
wheel when analyzing the Second Amendment with
decades of established individual rights analysis at
its disposal. Adopting a ‘one size fits all’ approach
instead of implementing the precision analytical tools
already established by and available to the Court
would lead to unartful analysis and an unnecessary
loss of freedom.