Thursday, June 16, 2016

The Difference Between the First and Second Amendments

You often hear well-meaning arguments in favor of gun restrictions and limits on the Second Amendment, that no rights granted under the Bill of Rights are absolute, as evidenced by the fact that, even with the First Amendment, you can't "shout fire in a crowded theater".

Aside from incorrectly citing Justice Oliver Wendell Holmes, Jr.'s 1919 opinion in the US Supreme Court case Schenck v. United States which offered "falsely shouting fire in a crowded theater" as the kind of speech the First Amendment should not safeguard - after all, if there really was a fire, it might be a good idea to shout about it - the example when used in support of gun control suggests a false equivalence between words and bullets.

Words, whether spoken or written, do not kill.   Bullets when fired from guns often do.  Words can of course incite to riot or other criminal activity, and, if so, should be punished if there is clear criminal intent. But otherwise, the First Amendment's providing that "Congress shall make no law ... abridging the freedom of speech, or of the press" should indeed be taken literally and as absolute. When that fundamental principle is violated - as when Schenck was arrested for distributing anti-war leaflets, or Nixon tried to prevent The Washington Post and The New York Times from publishing The Pentagon Papers - those violations should not be upheld by the US Supreme or any courts (which is why I thought Holmes' decision was wrong, and the Burger Court's in favor of the publication of The Pentagon Papers was right).

But bullets are not words, and the Second Amendment never provided any absolute wording about what Congress cannot do in regulating weapons. The Second Amendment does not say "Congress shall make no law" regarding possession of firearms.  What it does say is "the right of the people to keep and bear arms shall not be infringed," and that's something quite different.  Surely that wording does not guarantee the right of the people to bear any arms they choose.  We all would agree, presumably even the NRA, that the Second Amendment does not give people the right to bear rocket launchers with nuclear-tipped weapons.   Where we draw the line can and should be debated.   But assault weapons that can kill and injure hundreds in a few minutes seem manifestly way over any sensible line.

The bottom line of all of this is that we can insist on limitations of the right to bear arms under the Second Amendment without incursions of our absolute rights under the First Amendment.  Such an approach would maximize our effort to safeguard both life and freedom.

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