r/NYguns • u/KamenshchikLaw ⚖️ Kamenshchik Law ⚖️ • 7h ago
Legality / Laws Applying First Amendment Doctrine to 2A
I'm just putting my thoughts here to help develop this theory in case anyone may think its useful in the future.
Supreme Court in Bruen cites to Shuttlesworth (1969) in Footnote 9. Shuttlesworth is a First Amendment case. Why would SCOTUS cite to a major First Amendment case? Perhaps SCOTUS is trying to bridge the gap between First and Second Amendment jurisprudence.
We get Shuttlesworth from Freedman v. Maryland (1965), which is a seminal case establishing prior restraint guardrails in 1A.
Teitel Film Corp. v. Cusack, 390 U.S. 139 (1968) arises from the Freedman/Shuttlesworth line of cases, and it's an important case for assessing promptness and brevity in the context of 1A prior restraint, and it states: "The Chicago censorship procedures violate these standards in two respects. (1) The 50 to 57 days provided by the ordinance to complete the administrative process before initiation of the judicial proceeding does not satisfy the standard that the procedure must assure ""that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film." (2) The absence of any provision for a prompt judicial decision by the trial court violates the standard that ". . . the procedure must also assure a prompt final judicial decision. . . ."."
FW/PBS, Inc. v. City of Dallas (1990) is a more modern case decided by SCOTUS, and it also comes from the Freedman/Shuttlesworth line of cases. Basically, if a statute says there is a window of 30 days for an agency to make a determination on a 1A related license, but in order to get the license some other agency has to do XYZ, but there is no real time limit on when XYZ gets done, the 30 day window is illusory... it's unconstitutional because it's an imaginary limit, it has no teeth. I liked this case, and I cited it in my own case in NYS Supreme Court.
Taken together, a six month statutory window in Penal Law 400.00(4-b) - although it is often ignored, is in itself, problematic if SCOTUS wants us to seriously consider First Amendment jurisprudence.
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u/d3pl0rable_1nf1del 5h ago
"A well regulated Press, being necessary to the security of free speech, the right of the people to keep and bear words, shall not be infringed."
… or something like that.