During oral arguments earlier this month in the most important Second Amendment case to reach the Supreme Court in years, Chief Justice John Roberts and Justices Samuel Alito and Amy Coney Barrett seemed especially interested in where lines around restricting guns in public spaces should be drawn. Should the Second Amendment guarantee individuals the freedom to carry concealed weapons in a courthouse or in a stadium? How much weight should the court give to the density of the community in which the firearms are to be carried? Does the amount of crime favor or disfavor gun owners?
Critically, and missed in the wider discourse around the case, Paul Clement, the attorney for New York State Rifle & Pistol Association, opened the door to resolving the case by looking at the court’s past First Amendment jurisprudence and applying it to gun rights. Contrary to what Clement argued, though, framing the guns case through a First Amendment lens reveals that the court has drawn clear and workable lines that argue for commonsense regulations. If the Supreme Court were to hold gun owners to the same standards it holds people seeking to take part in protected speech and assembly, New York’s current restrictions on concealed carry would actually survive in some modified form. If that doesn’t happen, then the court’s conservatives would be elevating the status of the Second Amendment above First Amendment protections for the first time ever.
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