Like the First, Fourth, Fifth, and Fourteenth Amendments, the Second Amendment stirs fervent debate among legal academics and the American public. Unlike these Amendments, however, the Second Amendment has received very little treatment from the Supreme Court until recently. In District of Columbia v Heller, the Court established that the “right of the people to keep and bear Arms” includes the right to bear arms for self-defense. Without further guidance from the Court, lower courts have struggled to consistently and uniformly determine when the Constitution permits gun regulations in spite of the Second Amendment.
To provide clarity, this Comment offers a new framework for analyzing Second Amendment cases by drawing upon the First Amendment, a close cousin of the Second Amendment. In particular, courts should evaluate gun regulations by determining the value of the underlying regulated gun, similar to how courts ascertain the value of certain speech in the free speech context. The salient question for guns is: To what extent does the gun further the self-defense purpose announced by the Supreme Court? To make this determination, this Comment proposes a set of objective factors—including a gun’s close-range capabilities, compactness, collateral damage risk, and the ease with which it can be wielded—thus cordoning off the shortcomings of the First Amendment’s arguably subjective framework. After explaining how free speech jurisprudence offers useful lessons for Second Amendment analysis, this Comment applies that approach to a nascent issue percolating among lower courts: whether the Second Amendment includes a right to sell a firearm
Sitzmann, Joseph E.
"High-Value, Low-Value, and No-Value Guns: Applying Free Speech Law to the Second Amendment,"
University of Chicago Law Review: Vol. 86
, Article 1.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol86/iss7/1