In his opinion for the Court in the NY gun case, Justice Thomas says that means-ends inquiry will not be part of Second Amendment analysis. On page 15 of his opinion, he goes on to say that this approach “accords with” the Court’s “freedom of speech” precedents. I confess I found that passage perplexing as means-ends inquiry is a familiar, indeed standard, part of free speech jurisprudence. Strict scrutiny is one form, for content-based regulation of speech. Intermediate scrutiny is another, for time, place, and manner regulations. Precedents going back to the Warren Court, like O’Brien v. United States, and even earlier, explore how the means-end inquiry should be conducted with respect to various aspects of free speech regulation (like the symbolic speech issue of burning a draft card in O’Brien itself).
What, if anything, does today’s opinion portend for free expression jurisprudence and therefore those aspects of election law that involve the First Amendment? The majority opinion in today’s case was somewhat cabined by Justice Kavanaugh’s concurrence, joined by Chief Justice Roberts, although both justices joined the Thomas opinion in its entirety, as did Justices Alito and Barrett who each also wrote their own separate concurrences. At some point, I will dig deeper into this issue, as I suspect many of us will. Meanwhile, I very much look forward to seeing whatever insight or guidance on this topic may emerge in the wake of today’s decision.