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.

Cruz vs. Feinstein on Gun Control: A Better Answer to Cruz

The exchange between Senators Ted Cruz (R-TX) and Dianne Feinstein (D-CA) about the constitutionality of gun control has been getting a lot of coverage today.  Cruz asked Feinstein how, given the Federal authority to outlaw certain weapons as provided for in her bill, and the violation of the Second Amendment which he saw that entailing, would she feel about a law that outlawed certain books, and the violation of the First Amendment that such a ban would entail?

Feinstein told Cruz not to lecture her on the Constitution, Cruz said he respected her passion, and there has been a lot of commentary in the media about how well Feinstein stood up to Cruz's questions.  Be that as it may, there was no constitutional answer given to Cruz, so here's one now:

First, here are the texts of the First and Second Amendments:

• First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

• Second Amendment: A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Cruz in his exchange with Feinstein pointed out that "the right of the people" is used in both Amendments - true - and that restrictions or control of guns (or arms) under the Second Amendment therefore should be no more allowable than restrictions of books under the First Amendment, because in both cases "the right of the people" would be infringed.   Not true.

Here's why:  the First Amendment associates "the right of people" to "peaceably" assemble and petition the government.  But before that, and before the phrase about "abridging the freedom of speech, or of the press," the First Amendment reserves the phrase, "Congress shall make no law" - a phrase that appears nowhere in the Second Amendment.

Had the Founders wanted the Federal government to make "no law" regarding possession of weapons or arms, they easily could have used that phrase in the Second Amendment.  Instead, they used the far weaker "shall not be infringed," which obviously leaves lots of room for reasonable laws that do not infringe.

And that, obviously, was a very smart distinction, because guns can kill and cause physical harm, but the worst that words can do is anger and aggravate.  The Founders had it right, and Cruz has it wrong.

Perhaps the Most Important Speech of Obama's Presidency

Barack Obama's speech to the bereaved in Newtown tonight, to the bereaved across America, and his insistence that we have to do something to control or lesson this gun violence, that he will use the power of his office to do this, may be the important speech of his Presidency.

Guns - which exist for the purpose of hurting or killing some living being - have to be stopped, have to be taken out of the hands of people who use them to kill innocent people, in the case of Newtown, including little children.

Yes, we have a Second Amendment.  But nothing in that Amendment mandates the availability of guns so efficient that they killed 26 people, 20 of whom were little children, in mere minutes.  Some may interpret the Second Amendment as saying it does prevent the government from limiting the sale of any kind of firearm.  Good for them, they're entitled to their interpretation, but the President doesn't have to follow it.

Let the Supreme Court ultimately decide.   Governments violate the First Amendment every day, and its preclusion of any government interference on speech and press.   Those cases are ultimately decided by the Supreme Court.

Let the government start taking a chance with possible violations of the Second Amendment.  Congress should pass a renewed and extended ban on automatic weapons.  The President should immediately sign it.  And if Congress declines to pass such legislation, the President should use the power of his office to take those guns away from the people, anyway.   And if the Supreme Court ultimately decides that such actions are unconstitutional, at least some lives will have been saved in the interim.

But I think the Supreme Court will support such action.   As Obama rightly said, there are many things that led to the horrendous tragedy in Newtown.  But one thing is clear: a brutally effective killing machine in the hands of a lunatic meted out those bullets.   It's way past time we finally moved to put those killing machines away.

Thoughts about The Dark Knight Massacre

Some thoughts about the horrendous shootings in the Colorado movie theater showing The Dark Night 3 last night:

1. The single most effective way of preventing such tragedies in the future, or reducing their likelihood, is for President Obama and Congress to step up and restore the ban on assault (semi-automatic) weapons.  No law-abiding citizen should have need for them.  Their banning would not violate the Second Amendment - which, unlike the First Amendment, does not say "Congress shall make no law".  Rather, the Second Amendment says government should not "infringe" upon the rights of people to bear arms.  The banning of a weapon of mass killing would not infringe on the right of citizens to bear other kinds of guns. (Just a ban on sale of assault weapons to anyone under 30 years of age would help - it would have prevented the attack on Rep. Giffords last year, the murders at Virginia Tech, and what happened in Aurora.)

2. The notion that violence in the movies or in any medium triggers this kind of real-life violence is not supported by the facts:  Millions and millions of people have watched violent movies and television, and played violent video games - and, thank goodness, mass killings have happened just handfuls of times.  (See my debate with Jack Thompson a few years ago about violent video games for more.)

3. But motion picture theaters need to think of ways to make their premises more safe.  Movies - especially horror movies - have for decades sought to give the viewer tingles of fear by showing people on the screen menaced and killed by monsters and psyschos in the darkness.  With what happened in Aurora, Colorado making this a reality, the motion picture industry may need to rethink such movies, or at very least provide increased means of protection in theaters, such as metal detectors. Motion picture theaters have in effect been on the ropes since the rise of television in the 1950s.  The ease today of also viewing movies on tablets and smart phones is only putting more pressure on theaters.  Unlike schools, where attendance is required, movie-going is strictly optional.  The public needs to feel that exercising this option is safe.

4. The Batman franchise - in particular, The Dark Knight trilogy - will likely forever be associated with the tragedy of Aurora.  The Batman story, at its core, is about the darkness in the human soul (which Batman is able to overcome, or channel into doing good).  The spilling over of this darkness from fiction into our reality - where it of course already exists - is a signal moment in the history of movies, and even story-telling in general.   What impact this will have on Batman's place in our popular culture is hard to say - it will likely make the masked crusader both more and less intriguing - but we can be sure that Batman will never be seen the same.

   

Stopping the Next Tucson: Suggestion about Gun Control Consistent with the Second Amendment

The individual who pulled the trigger in Tucson is clearly a disturbed person.  He was likely stirred up by intemperate, toxic talk on television, radio, and the Web.  But what is the most effective way of making such crimes, which tear the very fabric of our democracy, less likely to happen from now on?  Surely, keeping weapons out of the hands of such disturbed people is the most direct way.

The Second Amendment guarantees the right to bear arms, but not by criminals and people in mental institutions.   How difficult would it be to add to this list of reasonably excluded people those who have shown signs of mental unbalance and propensity for violence?

Jared Loughner showed such signs - to his teacher and by his own postings online.   How difficult would it be to get teachers and readers on MySpace and Facebook pages to report such indications of unbalance, such troubled individuals, to a central clearinghouse, that all gun dealers would be obligated to consult before selling a weapon?

This is far from a perfect solution.  But surely it would help.   The toxic talk could be reduced, too, not by law but by a public which turns off such talkers and walks away from online sites that traffic in the metaphors of violence.    But since there is no telling just what can set off a sick person, a better way of reducing the likelihood of murder of public and private citizens for political reasons is to do more, much more than is done now, to keep guns out of their hands.

A nine-year old child killed, Congresswoman Gabrielle Giffords in critical condition, four other people killed - we as our society can't continue doing business as usual when it comes to the gun that did this.  And while we're at it, how about banning automatic clips - the most lethal kind of ammunition - which the Second Amendment says nothing about at all.

Supreme Court Is Correct in Striking Down Chicago Gun Ban

I support the US Supreme Court's striking down (5 to 4) a Chicago gun ban as unconstitutional this morning.   I'm no fan or devotee of guns, but the Second Amendment is, after all, a prominent part of our Constitution - only the First Amendment exceeds it in numerical priority - and ought to be respected.

Chicago argued that the Second Amendment applies only to Federal laws, not to state and local laws.  But the Fourteenth Amendment says otherwise, explicitly insisting that the rights of citizens given in the Constitution cannot be taken away or abridged by states.

The dangers of violating the Constitution should be obvious.  World War II was the last war legally declared by Congress as provided for in the Constitution.   American wars in Korea, Vietnam, Iraq, and now Afghanistan are the result.   The First Amendment says Congress shall make no law abridging freedom of speech and press.  But the FCC has been fining broadcasters millions of dollars in the past few years.  (See my Flouting of the First Amendment for more.)

Disregarding a part of the Constitution, such as the Second Amendment, just because we don't like it, is not the way to go.   Finding a legal way to work around it (if one really exists) or repealing it are the only possible roads to real progress.   The Chicago gun ban law did neither, and the Supreme Court was right to sweep it aside.

I'm a Progressive Libertarian

People often ask me how I would describe myself politically - actually, not so much people these days, as places such as Facebook, etc., when you're filling out their profiles. I don't like labels. But I've recently begun to list myself, when I can write in rather than a choose from a group of options, as a "progressive libertarian".

Here, for the blogospheric record, is why:

1. I'm a libertarian. I agree completely with Thomas Jefferson that the greatest threats to our freedom and well being come from government, democratically elected or not. Certainly Hitler and Stalin tragically proved that. I think the Constitution in general, and the Bill of Rights in particular, must be strictly adhered to. Of course, not all the Amendments are exactly the same in what their wording prohibits. The First Amendment's provision that "Congress shall make no law" abridging freedom of speech and press means just that - "no law," period - in contrast to the Second Amendment's provision that the right to bear arms "shall not be infringed," which I take as meaning laws regulating weapons are constitutional, as long as they do not "infringe" on lawful citizens who bear arms. The Fourteenth Amendment, and its provision that all limitations on the Federal government in the Constitution apply to the states, municipalities, etc., is also crucial.

So are other components of the Constitution. I believe it is ethically horrendous to send people to war without the Declaration of War required by the Constitution. The United States has gone to war that way in every war we have fought since World War II.

I also think that, in general, the government should keep its hands off commerce and business.* I disagreed with the anti-monopoly suits against Microsoft - why punish the organization most responsible for bring us the Web?

I want to see lower taxes for everyone, except millionaires and billionaires, whose taxes should be raised. Indeed, I'd recommend no income taxes at all for anyone or compay earning under a million dollars a year.

2. I'm a progressive. This means that I think some government activities are not only necessary but ethically mandated. I want the government to do all in its power to eradicate social injustice, and insure equal rights for women (including a woman's right to decide whether or not to become a mother), gays (including the right to marry), and all minorities and majorities. The government should also make sure that people have sufficient health care, and do not live in poverty. I also want the government to do what it can to support and stimulate science, research, and space exploration. Federal spending should be directed to all of these social, economic, and scientific imperatives.

Neither the Democratic nor the Republican Party has been too good on the libertarian issues in the 20th century. Neither is Barack Obama or John McCain.

But Obama is far more progressive than McCain. I voted for Obama in the New York primary, and will vote for him in November.

*Note added January 2, 2009: And what do I think is the best response of the government to the economic crisis that struck the United States in the Fall of 2008, and is getting worse at the beginning of 2009? Here is what I wrote in a comment, below, on December 29, 2008: "I see the government as an antibiotic: we're usually better off, when fighting infection, to let our body's immune system do the job. But if our lungs are filling with fluid from bacterial pneumonia, we'd better be taking antibiotics (=government intervention in the economy) soon." And I would emphasize that the antibiotic intervention should be as massive as possible, and the government should be ready to try a new course of antibiotics, as rapidly as possible, if the courses being administered do not work. And just as with any strong medication, once it has done its job, it should be withdrawn, in a careful, measured way, as soon as possible.

**Note added December 3, 2011:  See also A Progressive Libertarian in the Occupy Wall Street Age


13-minute podcast on this subject, which I recorded on January 2, 2009

Remembering John Lennon

I just heard John Lennon's "Woman" on the radio, and, as always, it brought a tear to my eyes and soul.

It's impossible, on one level, to compare assassinations, the murders of public figures. They are all horrendous. But the murder of John Lennon on this date in 1980 is in some ways the worst for me, and I can't speak for my generation.

John was a singer, a songwriter, for God's sake, not a President or someone running for office. His murder was fueled by a sick thirst for fame, pure and simple. That's why I never mention the sicko monster's name.

But this day - and public murders in the quest for fame - also makes me think about gun control. The killer in Omaha this week was looking for fame, too.

I know about the Second Amendment. And as an absolutist on the First Amendment, which I think should be followed literally, with no government restrictions on speech or press, all of the time, I want to do the same for Second Amendment.

But I can't help thinking that John Lennon might have survived a knife attack, and fewer people might have succumbed to the killer in Omaha had he been armed with only a knife.

I'll think more about those issues tomorrow.

Today, let me just say, John, I always loved your music and always will. It brings me joy to this day to hear anything you wrote or sang - from "Dr. Robert" to "Jealous Guy," just two of my all-time favorites.

And Yoko - thank you, too, for being so strong and dignified and unswerving in your commitment to peace all of these years. John would have been very proud of you.

I write about time travel in my fiction. If only it were real, and I could employ it, I think the first thing I would do is go back and save John, and warn him not to go into that alley....

I can't do that, but at least his music doesn't need saving. It will be here forever on CDs and MP3s and whatever new forms of music media invented by our species.