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Old March 9, 2010, 08:33 PM   #74
Frank Ettin
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,700
Originally Posted by Tennessee Gentleman
....Don't enumerated rights get priority over unenumerated rights? ...
Yes*, but they are not inviolate. So it wouldn't be an impermissible abridgment of your right of free speech to arrest you for disturbing the peace when you stand on your front porch and exhort your neighbors to vote Republican -- using a bullhorn -- at 3:00 am.

Of course that raises some interesting questions in the case of the 2nd Amendment. Remember that the Constitution doesn't regulate private conduct. So while government may not infringe the right to keep and bear arms (subject, of course to existing constitutional law permitting limited regulation of constitutionally protected rights), a private entity is free to "infringe" your right to have a gun on its private property (absent some other prohibition in statute or case law on such conduct).


*The standard of scrutiny thus far applied to rights enumerated in the Bill of Rights has been strict scrutiny. That's a three prong test --

[1] The regulation must be justified by a compelling governmental interest; and

[2] The law or policy must be narrowly tailored to achieve that goal or interest; and

[3] The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).

We'll see what standard winds up being applied in the case of the 2nd Amendment.
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