Gun Restrictions as Analogy for Justifying Speech Restrictions
I’ve often heard gun rights supporters object to restrictions on gun ownership by various people (including felons, people subject to domestic restraining orders, and the like) by analogy to speech restrictions: We wouldn’t ban a person from public speaking just because he had once been convicted of a crime (assume he’s out of prison now, and no longer on probation); why should we do the same as to guns? Conversely, the argument goes, if courts accept the gun restrictions, those restrictions would end up being used as analogy to restrict other rights, too.
I don’t think this is an open-and-shut argument; different constitutional rights involve different kinds of risks, and are therefore often treated differently. It may well be that the dangers posed by gun ownership by people with a criminal record (especially a record of violent crime) may justify a ban, but the different dangers posed by speech wouldn’t; and there is indeed more of a tradition—though only dating back about a century or less—of restrictions on gun ownership by felons.
Nonetheless, here’s one data point in favor of this argument, a case that I had read before but hadn’t focused on until now. (I’m finishing up an argument on overbroad injunctions against speech, and I’ll be discussing the case in detail.) The case is Best v. Marino, decided 2017 by the New Mexico Court of Appeals (for background, see this Nature news blog post [Helen Shen]):
This appeal arises from a finding of indirect criminal contempt against Respondent Camille Marino for her violation of an order of protection ….
Petitioner [Steven Best] is a philosophy professor at the University of Texas at El Paso (UTEP) and resides in Anthony, New Mexico. Respondent resides in Wildwood, Florida. Petitioner and Respondent became acquainted through their work in the animal rights movement and maintained a platonic friendship for several years until that friendship deteriorated in August 2012.
On October 15, 2012, Petitioner filed a petition requesting protection from acts of domestic abuse perpetrated by Respondent. His petition alleged that Respondent (1) sent threatening email messages, (2) made threatening telephone calls, (3)
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