More often, the Court has focused on a functional method of determining the scope of the First Amendment’s protections. In Chaplinsky v. New Hampshire (1942), the Court stated that:

[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem…. such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.90

This approach focuses on the purposes behind the amendment—to foster the “exposition of ideas” and the search for “truth”—in an approach similar to the functional approach toward defining the Second Amendment discussed above.

Defining the scope of the Second Amendment’s protection is one way in which the permissibility of challenged gun control measures can be evaluated. For example, if one accepts the Kates test outlined above as an accurate measure of the scope of the right, it is easy to see why handguns are clearly protected, while weapons like Saturday Night Specials or switchblade knives are not.91 It could be argued that the amendment was never intended by the framers to protect ownership of these weapons from government regulation, because these weapons are not necessary for military, law enforcement, or self-defense purposes. Similarly, private ownership of nuclear weapons would not be protected, as such weapons are not lineal descendants of the types of weapons known to the framers. Assault rifles present a more difficult question: if one sees such weapons as direct descendants of the type of weapons used by the framers, as well as useful for modern military or law enforcement purposes, ownership of such rifles may be entitled to some level of protection. In any case, using such a test to determine the scope of protection provided by the amendment, a court could determine whether regulations that ban or otherwise restrict ownership of certain weapons implicate the Second Amendment’s guarantee at all.

“Infringements” on the Second Amendment Right

Once a core of protected activity is identified, the question becomes when a particular gun control regulation impinges on that protected sphere. Answering that question is not as straightforward as it may seem: one

90  

Chaplinsky, 315 U.S. at 571-72.

91  

Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. at 259-60.



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