FA_Q2
Gold Member
As mentioned before, there's nothing here that changes anything.Here is the main area where the logic of using prior restraint outside of free speech bothers me. There is not a single condition that prohibits an individual from free speech. There are specific types of speech that are restricted. If an individual were to violate them, he/she may be subject to a penalty, but the basic right to free speech is not removed. Not so with 2nd Amendment rights. Because of the deadly nature of firearms, it became necessary to restrict this right to those who have committed certain crimes in the past. This is typically designated as Class C felonies. Should this condition exist, the individual does not have this right.
The argument that background checks are a form of prior restraint rests on the idea that it is intended to prevent the illegal practice of the act preemptively, by censoring a violation of restricted form of speech before they happen. The intent of them may very well be to reduce violent crime, but the action itself is checking for eligibility, to see if the purchaser has committed a crime that has prohibited him from his 2nd Amendment rights.
However you want to word it, the basic function of the background check is to restrain the exericse of the right prior to the exercise of same to determine if said exercise will break the law; if it does, then the exercise is denied, if not, then it it is allowed to continue.
The important part of this is "...to determine if said exercise will break the law..." -- it doesnt matter what law is broken, and it doesnt matter the basis for that law, the issue is the breaking of the law itself. As such, your differential argument as to felons having their right removed is meaningless as it does not matter how the law in question came to be or what effect it has, only that the law is/is not broken by the exercise in question.
I think that he does have a point in that there is no case of a first amendment right being removed through judicial process whereas there is clear and common infringement on second amendment rights through the judicial process.
In that, there is no compelling state interest in applying prior restraint to the first amendment your rights are always present. There is more of a compelling state interest in regard to the second amendment in that there ARE cases where you no longer have your second amendment rights.
I think that another tact can be taken here as well with the idea that illegally obtaining a weapon does violate others rights (namely endangering others health and life). In your case against the right to vote, you apply prior restraint because illegally exercising that right infringes on others voting rights by diminishing them. It is true that legally purchasing and possessing a weapon is not a danger to others and is a right. However, we are not talking about the legal purchase here but the illegal purchase of a weapon. In that respect, is not the illegal purchase and possession of a weapon a danger to others health? If the answer is no, then why are we limiting those individuals right to a firearm in the first place? If that answer truly is no then the courts should not (and really do not have the right) to remove a persons second amendment rights. If that answer is a yes, then you have a good case for the application of prior restraint being a compelling state interest in the purchase and possession of firearms.