June 26, 2014
Could McCullen's First Amendment scrutiny impact (and strengthen) Second Amendment claims?
I am not a First Amendment expert, and thus I cannot expertly assess all the Justices' First Amendment work today in the SCOTUS abortion buffer-zone ruling in McCullen v. Coakley (available here). But a quick review of the Chief Justice's majority opinion revealed that the Court struck down a Massachusetts regulatory law justified on public safety grounds using intermediate scrutiny because the state had "not shown that it seriously undertook to address the problem with less intrusive tools readily available to it [nor] that it considered different methods that other jurisdictions have found effective." Id. slip op. at 27. As the title to this post suggests, I wonder if court analysis of Second Amendment challenges to federal, state and local gun regulations might be impacted by the Supreme Court's First Amendment analysis in McCullen.
As of this writing, it is not yet even clear what level of scrutiny courts should be applying to Second Amendment challenges to federal, state and local gun regulations. But in many settings, many courts have adopted the same basic intermediate analysis that led to Massachusetts' law being found unconstitutional in McCullen. Of particular interest, therefore, is the language quoted above, in which the Chief Justice assails Massachusetts for failing to seriously explore how to "address the [public safety] problem with less intrusive tools" and to consider "different methods that other jurisdictions have found effective." I suspect many gun rights advocates, when pressing challenges to federal, state and local gun regulations defended on the basis of public safety, will be quick to quote this language and to assert that a jurisdiction's gun restrictions should be struck down absent evidence the state seriously explored "less intrusive" restrictions and/or considered "different [gun laws] that other jurisdictions have found effective."
June 26, 2014 at 01:52 PM | Permalink
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That language comes very close to the court issuing a advisory opinion. Moreover, I remain deeply skeptical of this type of judicial micromanaging. I do not think the court helps itself when it looks like it is dictating to the legislature what to do.
Posted by: Daniel | Jun 26, 2014 7:30:42 PM
1A law is well developed over a span of decades. Heller in effect created new 2A law.
I'm sure advocates will use that language but it is unclear how the USSC will apply it in the not quite the same context of the 2A. It is about time for the USSC to take a case to clarify these matters.
Posted by: Joe | Jun 28, 2014 2:16:00 PM