The First Amendment Guide to the Second Amendment
David B. Kopel
Independence Institute; Denver University - Sturm College of Law
September 3, 2014
Tennessee Law Review, Vol. 81, No. 3, 2014, pp. 417-78
U Denver Legal Studies Research Paper No. 14-23
As described in Part I of this article, the Supreme Court has strongly indicated that First Amendment tools should be employed to help resolve Second Amendment issues. Before District of Columbia v. Heller, several Supreme Court cases suggested that the First and Second Amendments should be interpreted in the same manner. Heller and McDonald v. City of Chicago applied this approach, using First Amendment analogies to resolve many Second Amendment questions.
Part II of this Article details how influential lower court decisions have followed (or misapplied) the Supreme Court’s teaching. Of course, precise First Amendment rules cannot necessarily be applied verbatim to the Second Amendment. Part III outlines some general First Amendment principles that are also valid for the Second Amendment. Finally, Part IV looks at how several First Amendment doctrines can be used in Second Amendment cases, showing that some, but not all, First Amendment doctrines can readily fit into Second Amendment jurisprudence.
Number of Pages in PDF File: 62
Keywords: First Amendment, Second Amendment, overbreadth, prior restraint, chilling, vagueness
JEL Classification: K19, K39
Date posted: April 15, 2014 ; Last revised: September 4, 2014