Document Type
Article
Publication Date
2022
Abstract
This Essay examines the continuing constitutional trend of using First Amendment principles to interpret and develop Second Amendment doctrine. Beginning with District of Columbia v. Heller, in which the Supreme Court drew multiple analogies between the two amendments, the article traces how lower courts have relied on First Amendment jurisprudence to structure Second Amendment analysis. Courts have borrowed concepts such as the non-absolute nature of constitutional rights, the role of history and tradition, categorical exclusions, tiered standards of scrutiny, adequate alternatives, evidentiary requirements, and doctrines relating to fees, underinclusivity, and geographic limitations. At the same time, courts have rejected wholesale transplantation of uniquely speech-based doctrines, including prior restraint and overbreadth. The Essay assesses the benefits and limitations of this cross-amendment borrowing, noting that while First Amendment analogies have provided a useful framework for courts developing Second Amendment law, significant doctrinal questions remain—particularly concerning standards of review and the scope of protection outside the home.
Recommended Citation
David L. Hudson Jr., Essay: A Continuing Constitutional Trend of Using the First to Interpret the Second, 55 Creighton L. Rev. 297 (2022).
