Gun Restrictions as Analogy for Justifying Speech Restrictions

I’ve often heard gun rights supporters object to restrictions on gun ownership by various people (including felons, people subject to domestic restraining orders, and the like) by analogy to speech restrictions: We wouldn’t ban a person from public speaking just because he had once been convicted of a crime (assume he’s out of prison now, and no longer probation); why should we do the same as to guns? Conversely, the argument goes, if courts accept the gun restrictions, those restrictions would end up being used as analogy to restrict other rights, too. I don’t think this is an open-and-shut argument; different constitutional rights involve different kinds of risks, and are therefore often treated differently. It may well be that the dangers posed by gun ownership by people with a criminal record (especially a record of violent crime) may justify a ban, but the different dangers posed by speech wouldn’t; and there is indeed more of a tradition—though only dating back about a century or less—of restrictions on gun ownership by felons. Nonetheless, here’s one data point in favor of this argument, a case that I had read before but hadn’t focused on until now. (I’m finishing up an argument on overbroad injunctions against speech, and I’ll be discussing the case in detail.) The case is Best v. Marino , decided 2017 by the New Mexico Court of Appeals (for background, see this Nature news blog post [Helen Shen] ): This appeal arises from a finding of indirect criminal contempt […]

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