Making Second Amendment Law with First Amendment Rules: The Five-Tier Free Speech Framework and Public Forum Doctrine in Second Amendment Jurisprudence

The United States is half a decade into developing a jurisprudence applying the Second Amendment. Part II of this article sets forth the current state of the law on the Second Amendment. Part III discusses the proposed approach for Second Amendment judicial review, consisting of a three-step inquiry. These three steps dictate which of five levels of scrutiny should apply in any given case.

Part IV explores the rationale and normative principles underlying this theory, including the desirable clarity of per se rules and the need to restore strict scrutiny to a test that is sufficiently strict to provide adequate protection for core exercises of fundamental rights. Part IV also acknowledges three differences between the First and Second Amendments that suggest areas on the margins where the jurisprudence of the two Amendments might diverge. Part V expounds the three levels of scrutiny that apply to burdens on Second Amendment exercises on private property. Part VI explains how public forum doctrine offers two additional standards of review that apply on public property.

Finally, Part VII concludes with a discussion on how courts should proceed regarding the Second Amendment.