While judges act like their restrictive interpretation of the Second Amendment is in accordance with constitutional law, they hypocritically don’t apply the same narrow interpretation to the First Amendment. Courts read the First Amendment to create a presumptive immunity for expression, striking down regulations unless they survive the most stringent review. The First Amendment has always been broadly interpreted.
In contrast, the Second Amendment (even after the landmark District of Columbia v. Heller case in 2008 expanded it beyond a collective right to an individual one) has been treated as a limited individual right hedged by presumptively valid police-power regulations. And after Heller, the courts have continued chipping away at the Second Amendment.
Both amendments make it very clear they cannot be regulated away. The First Amendment states in part, “Congress shall make no law…abridging the freedom of speech.” The Second Amendment provides, “the right…to keep and bear Arms, shall not be infringed.” So why is one treated as if it comes with caveats but not the other?
The Supreme Court applies a rigorous standard of review to the First Amendment, strict scrutiny for content-based restrictions, which requires the government to demonstrate a compelling interest that is narrowly tailored. This is the highest level of scrutiny, and most restrictions fail the test. Laws regulating the First Amendment are presumed unconstitutional unless they have the narrowest possible tailoring — time, place and manner restrictions must be content neutral.
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