Ii issue does this prohibition violate the 2nd am iii

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ii. Issue: Does this prohibition violate the 2nd Am? iii. Holding : Yes. 1. Issue 1: Does the prefatory clause limit the operative clause of the 2nd Am to the militia? a. No. 2. Issue 2 : That being determined, we turn to the statute at issue. a. The language of the Am then makes the statute unconstitutional on its face. 3. The Court never says that this is a fundamental right and doesn’t specify what test they use. 4. This did not address whether the 2nd Am extended to the states (see McDonald v. City of Chicago ). 5. This right is not absolute. States are allowed to regulate. “Congress shall make no law respecting an (1) establishment of religion, or prohibiting the free exercise thereof; or abridging the (2) freedom of speech, or of the (3) press; or the right of the people peaceably to (4) assemble, and to (5) petition the Government for a redress of grievances.” – 1st Am. XII. Speech a. Why Protect Speech? i. Self Governance ii. Discovering Truth 1. Marketplace of ideas 2. Safety Valve iii. Advances Personhood and Autonomy iv. Promote Tolerance b. Distinction between Content-Based & Content-Neutral i. The Court has frequently held that the government cannot regulate speech based on its content. Content based regulations are presumptively invalid, and must meet strict scrutiny. 29
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ii. However, content-neutral regulation (regulation controlling the time, manner, mode, etc. of speech that applies to ALL speech regardless of content) must only pass intermediate scrutiny. c. Prior Restraints i. The Supreme Court has declared that “prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights.” 1. A clear definition of prior restraint is elusive. 2. Best definition: an administrative system or a judicial order that prevents speech from occurring. ii. Walker v. City of Birmingham 1. Facts : Court granted an injunction to keep civil rights protestors from protesting. Without challenging the injunction, the protestors violated it. After they were arrested, they challenged the constitutionality of the injunction under the 1st and 14th? 2. Issue : Was the injunction unconstitutional? 3. Holding : Doesn’t answer. a. Collateral Bar Rule : a court order must be obeyed until it is set aside, and the persons subject to the order who disobey it may not defend against the ensuring charge of criminal contempt on the ground that the order was erroneous or even unconstitutional. i. The collateral bar rule precluded them from challenging it now. Kills their claim. b. The ordinance is an attempt by Birmingham to enact constitutional interests in public safety. iii. Shuttlesworth v. City of Birmingham 1. Facts : 52 African-Americans were led out of a Birmingham church by three ministers, one of whom was the petitioning minister.
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  • Spring '18
  • Government, Fourteenth Amendment to the United States Constitution

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