Discussions on Parker and "reasonable regulation"
Over at SCOTUSBlog. A few samples are extended remarks below.
"Even the 1st Amendment is subject to reasonable time, place and manner restrictions. The background of handgun crime against which the law was enacted is just flavor, like the recitation of the grisly facts of a death penalty case when they are outside the actual legal issue being raised."
The only "reasonable time, place and manner restrictions" that could or should pass constitutional muster are restrictions that are targeted at secondary effects unrelated to the natural tradeoffs that will occur by adopting any constitutional right at issue. So anti-noise or crowd control ordinances are typically constitutional, but you can't put "reasonable time, place, and manner" restrictions on speech in an effort to control harms that the speech itself might propel. No one would argue that you could "reasonably" restrict the right of assistance of counsel in order to make sure the defendant doesn't get too much of a chance at trial by limiting prohibiting defendants from hiring more than two lawyers. Clearly, the adoption of a constitutional right carries an implicit adoption of its values as opposed to the countervailing ones, guaranteeing the values adopted in the right to prevail to the full extent of the language of the right, with no exceptions to be allowed except to allow for controlling tangential issues not already traded away upon adoption of the right at hand. Since the second amendment contains no "reasonableness" limitation, it can't logically be held to any sort of balancing test that the fourth amendment routinely encounters, insofar as the latter's protection is traded off against the opposing goal of criminal justice. If SCOTUS adopts the approach that you endorse, it would be the first time in the post-Brandenburg era in which it decides that an amendment explicitly insulating a certain right against fears that it might be abridged in the name of protecting society can henceforth be abridged for the very same purpose, subject to whatever arbitrary limits the court chooses to carve out of course."
Thanks for your thoughtful comment. I mentioned "time, place and manner" simply to indicate that even fundamental rights are subject to regulation.
I think you are misconstruing the city's third argument. It maintains not that the law is reasonable because it prevents violence, but that it is reasonable because it permits long guns. It puts handguns in a separate category of extremely dangerous weapons and subjects them to stricter regulation. This is similar to special categories for and stricter regulation of assault rifles, grenade launchers, bazookas, missiles and explosive devices.
If we must compare the First and Second Amendments, then this case is sort of like Rock Against Racism. Even though control of sound levels was part of the protected artistic expression, the impact of the sound levels on others justified a limitation on the scope of that control. As an erstwhile MC5/Ramones fan, I may feel oppressed by the state when I have to keep the volume down, but hey, it's a purpose of the state to limit the public behavior of its subjects for the common weal."
Thank you very much for the clarification. I still don't see,however, how this law can be sustained as merely a "regulation" of the right. Rock against Racism is indeed a perfect example of where a right may be regulated. The first amendment was passed to protect the right to speak against fears of the government regulating the right on the grounds that some of the speech is deangerous. That potential future argument was conceded on grounds that speech must be given the benefit of the doubt. No one was concerned that the government might make execessive regulations on grounds of noise, so noise-control ordinances will often be sustained when there are ample alternative channels open, etc.
The individual rights interpetation of the second amendement holds that the right to bear arms was written into the constitution in order to protect the rights of citizens to some sort of self defense (individual and/or against a government tyranny). It was passed due to fears theat the government might restrict the right on the grounds that it is too dangerous to allow citizens to carry arms. So if there are secondary effects from excercise of the right that could be legitimately found, e.g. a study that shows a particular risk of some airborn disease increasing when a certain type of weapon (that perhaps contains asbestos) is carried around, it would make sense to uphold the regulation. But to restrict possession of certain types of weapons on the grounds that they are so dangerous that private citizens can't be trusted with them is to abridge the right at the very point it was passed to protect."