Tuesday, May 24, 2022

Illegal Aliens and the Second Amendment

Professor Volokh wrote about this recent decision U.S.v. Jimenez-Shilon (11th Cir. 2022) concerning illegal aliens in possession: 

Reading through both the opinion and Judge Newsom's somewhat more useful concurrence shows both the properly narrow definition of who is one of the "people" for whom the right to keep and bear arms applies, and the flaws of what Newsom calls "an ill-define balancing test."  The opinion correctly, I think, distinguishes what Don  Kates and I in , "Second Amendment Limitations and Criminological Considerations," 61 Hastings Law Journal 1339-70 (2009). observed how in classical republican thought, the right to arms was inextricably and multifariously linked to that of civic virtu (i.e., the virtuous citizenry).' "  Best of all, the opinion used a very complete originalist analysis of how far the rights of even legal aliens extended. They also avoid the trap of whatever standard of scrutiny judges decide to use to meet the needs of their day's grumpiness.

Judge Newsom's concurrence is a direct attack on what Justice Thomas' 2020 dissent called "an 'entirely made up' test."

Accordingly, we shouldn’t ask whether a gun-control measure is, say, “substantially related” (how substantially?) to the achievement of an “important governmental interest” (how important?). Contra, e.g., United States v. Perez, 6 F.4th 448, 455 (2d Cir. 2021) (quotation omitted). Such an amorphous inquiry risks unelected and unaccountable judges upholding or invalidating gun-control laws at will—without respect to the original public meaning of the Second Amendment. Cf. Crawford v. Washington, 541 U.S. 36, 67–68 (2004) (“By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design.”).

He also observed that First Amendment free speech doctrine is a dumpster fire.  (Not in those words, of course, but effectively the same thing.)

Here, as best I can tell, is where things stand in terms of First Amendment doctrine: There seem to be two fixed stars. At one pole, the government can ban certain forms of speech outright— defamation, incitement, obscenity, etc.—“because [they are] understood to fall outside ‘the freedom of speech.’” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 822 (2011) (Thomas, J., dissenting) (quoting Ashcroft v. Free Speech Coal., 535 U.S. 234, 245–46 (2002)). At the other, speech restrictions “‘based on viewpoint are prohibited,’ seemingly as a per se matter.” Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1126 (11th Cir. 2022) (quoting Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018)). In between, it’s balancing tests all the way down....

It’s not just that the doctrine is exhausting—although it certainly is that. It’s that the doctrine is judge-empowering and, I fear, freedom-diluting. If we, as judges, conclude—as I’ve said we should—that Second Amendment rights shouldn’t be casually balanced away by reference to manipulable means-ends balancing tests, we might need to start asking the bigger question: On what basis can we do exactly that when dealing with other, equally fundamental rights?

Any honest defense of intermediate scrutiny on the 2nd Amendment would require accepting significant  limits on free speech.

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