Second Amendment Exceptionalism: Public Expression and Public Carry
48 Pages Posted: 24 Jul 2023 Last revised: 17 Aug 2023
Date Written: July 14, 2023
In New York State Rifle & Pistol Association v. Bruen, the Supreme Court recognized a right to carry firearms in public places. The scope of that right will depend on where, why, and how governments regulated public carry during the eighteenth and perhaps nineteenth centuries. The Court claimed its turn to history for determining the scope of Second Amendment rights “accords with” and “comports with” how the Court has interpreted First Amendment rights. This Article examines and rejects that claim, both in general and specifically as it applies to the public exercise of Second Amendment rights. Although Bruen purports to pursue interpretive parity, the Second Amendment is being constructed as an exceptional super-right. Second Amendment doctrines are shaping up to be the mirror opposite of First Amendment public forum and time, place, and manner doctrines. Although governments will retain broad authority to restrict and sometimes ban public expression, they may have very limited authority to restrict or ban public carry. Indeed, if courts apply a rigid historical standard to public carry laws, Americans will have stronger rights to carry firearms in public places than to speak there – an anomalous and astonishing result in a democracy committed to peaceful discourse. Recognizing a public carry super-right will produce dangerous disparities in terms of the scope of fundamental rights, chill public expression, and privilege self-defense over self-government.
Keywords: firearms, free speech, balancing, sensitive places, public forum
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