Underneath yesterday’s post National Concealed Carry Reciprocity is Unconstitutional! Or Not . . . , TTAG commentator Big Bill writes “There is no such thing as an absolute right. Can you yell ‘FIRE!’ in a crowded theater? Even with the first amendment?” It’s an argument gun control advocates trot-out from time-to-time to counter the Second Amendment’s plain language . . .
As Second Amendment absolutists say, what part of “shall not be infringed” don’t you understand? Answer: “the right to keep and bear arms.”
Keep means have, as in possess. Bear means to carry on one’s person. And . . . that’s it. The Second Amendment doesn’t prohibit the government from limiting the use of these arms. For example . . .
In Texas, a municipality can ban citizens from discharging a firearm on a tract of land smaller than 10 acres (unless it’s for lawful self-defense). Residents can keep and bear firearms on a sub-10 acre plot, but cities can ban them from shooting those guns (unless it’s for lawful self-defense). That’s not unconstitutional.
In contrast, residents who want to carry (i.e. “bear”) a firearm in Texas have to get a government permission slip; requiring an application, fingerprinting, background check, four hours of training, a shooting test and a fee. That is clearly unconstitutional.
So . . .
Big Bill is correct when he insists that the First Amendment doesn’t protect someone shouting “FIRE!” in a crowded movie house — if doing so causes harm. But you can shout FIRE! if there’s a fire.
By the same token, Uncle Sam can’t stop someone from entering a theater because the government has reason to believes the parton might shout FIRE! in a crowded movie house, creating panic and harm. This is no small point . . .
The First Amendment prohibits prior suppression of free speech.
Nothing prohibits the government from holding citizens accountable for the effects of their free speech — save the difficulty proving that a speaker directly, knowingly and maliciously caused harm by his or her speech. Unless it’s something like creating panic or physical harm by falsely and maliciously shouting FIRE! in a crowded movie house.
The First and Second Amendment forbid the government from prohibiting the keeping and bear arms or the exercise of free speech. They don’t stop the government from punishing citizens whose firearms or speech causes harm AFTER THE FACT.
Our Founding Fathers knew that laws that attempt to stop unwanted activities before they occur are both ineffective and dangerous. Inherently tyrannical.
What would the FFs have made of FBI background checks for gun purchases, ammunition magazine limitations, “assault weapons” bans, carry permits, bullet taxes and the like? A constitutional abomination and a direct affront to freedom. Like . . .
Banning the word “FIRE” in case someone might use it in a crowded theater (that wasn’t on fire).
So, in fact, the right to keep and bear arms is absolute, as is the right to free speech.
Prior Restraint, not suppression
There’s another standard in play ..
“There is no such thing as an absolute right. Can you yell ‘FIRE!’ in a crowded theater?”
YES. Yes you absolutely Can yell ‘FIRE!’ in a crowded theater .. If there is a Fire.
The constraint about Not yelling fire in a crowded theater isn’t a universal limitation on such a thing as ‘a right’, … it’s that Free Speech does not protect Premeditated Falsehoods. (as the USSC reasserted sometime in the early 1990s, if someone wanted to chase that down.)
Yelling fire (where there is none) in a public space could cause a reaction in which people could become harmed. If there is no actual fire, the usage of speech as a premeditated falsehood is not protected. In effect, one is free to speak their mind (as protected speech) but they are Not free to knowingly speak lies (and yet still expect such to be protected). – The right to swing one’s “first” ends at the next person’s nose.
Conversely, if there IS a fire .. quite contrary to ‘absolutely not being able to say so’ .. it quite rather becomes an incumbent Duty to warn others of an extant danger so they can escape it, or battle it, as early as possible. There might be injuries in the ensuing bustle, but far less injuries than if everyone burned to death.
Note that this, for both instances, is the SAME speech .. the yelling of the same word: ‘FIRE!’.
One is Information, the other is Disinformation. That is the delineation. One protected. One not.
So what of Firearms by way of the standard?
— A firearm which has Done Nothing is like a mouth that has Said Nothing. How has any harmed been caused?
— A firearm used to protect or defend the innocent is like a mouth that has warned of real fire, and subsequently also put it out. How has harm been caused?
— A firearm used by a criminal for criminal ends is an Unprotected Usage. These crimes are Already Crimes, they’re Already Illegal. The individual is not acting For society, they are acting Against it. This is like someone who Does yell ‘Fire’ where there is None. They have endangered others and thereby committed a crime, .. but no one (with any honesty or sense) then argues and tries to surgically remove (confiscate) the Vocal Chords of 310 Million other citizens so no one can speak again ever. Sheesh.
(BTW, everyone keep their eye on Premeditated Falsehoods repeatedly being ruled as not having First Amendment protections .. this is going to Eat the Establishment Media in around 2019. — Have popcorn.)
I wanted to add one other thing, it’s so blitheringly simple that people miss it, and certainly no college has taught it in sixty years: In the Constitution, when the Founders meant a power of the Federal Government – they Said So. When they meant a power or right of States – they Said So. Aaaaaand .. (wait for it) when they meant a power or right of THE PEOPLE, – they flippin-well SAID SO.
There’s no nebulous guessing of ‘intent’, they addressed every instance directly. With that in mind, go read the Second Amendment again, and then wait for the next lefty zombot to come along misdirecting about ‘collective militias’ and ‘ the intent of commas’.
Also, you absolutely CAN shout fire in a crowded theater, even when there is no fire, let’s not be stupid. You can then, also, shoot people as they run to depart the theater. Passing another law will not stop that ability. What such dimbulbs are actually saying is that you *may* not, ‘cuz we consider it bad. You can pass all the laws in the world, prohibiting shouting (or whispering) anything at all in a crowded theater, owning a gun, carrying one into a theater, possessing live ammo, having any magazines, dream up some more and you still have not changed a damn thing.
very interesting and cogent point. When do we get to prosecute the Cloward-Pivenites for their premeditated falsehoods? How about all the folks who are destroying the lives of young people in the transgender movement? I can think of a dozen cases where lies are told at the highest point particularly to damage our society.
Good observations. However….why have none of the pro 2A attorneys, in all the years never tried to use the “absolute right” defense? Or better, where are the successful court cases where “absolute right” prevailed?
We gotta get over telling ourselves, RTKBA, “shall not be infringed”, “absolute”. Being correct does not directly correlate with or cause “winning”.
Here is what being “absolutely right” (correct) can get you….a jail or death sentence. If you are wrongly convicted, and proven so, even the DA applying to the court to overturn a justly decided verdict is not an “absolute” guarantee of being freed form jail or execution.
http://www.slate.com/articles/news_and_politics/jurisprudence/2015/03/innocence_is_not_cause_for_exoneration_scalia_s_embarrassing_question_is.html
Scalia is implicated.
That doesnt stop racist left-wing groups like antifa from suppressing free speech.
Odious as they are, Antifa is not part of the government. Most of them do belong in government housing with three meals a day, and time outside to exercise once a day as well.
A HUGE # Obumer holdovers dang sure ARE still infesting the Fed gov’t.
ANTIFA might not be government, but it looks like they’re operating under government license when law enforcement is ordered to stand down and observe their acts without interference.
+1000
Antifa has the grace of the government just as the KKK had the grace of the government for the things they did 130 years ago.
The government just has to not intervene when antifa attacks people.
Oh please….
No matter RF’s opinion (or anyone else’s) the history of jurisprudence in this country clearly permits certain restrictions on even 1A and 2A. The question is when do those restrictions rise to effectively eliminating those rights?
This “absolute” argument is as tired as caliber, holster, inny/outty, training argument about what is “absolutely” the correct answer.
Sam I Am,
There is no question that the courts in the United States march to the beat of their own drum with respect to firearms laws. And discussions such as this article help us to see that the courts in the United States are almost universally in violation of the United States Constitution and state constitutions. This article also helps us to see that the courts are not self-consistent and are in violation of rational principles.
We need to know just how wrong our courts and jurisprudence are so that we can hopefully correct them. This article is one element that helps get us there.
If you werent’ already aware of the damage caused by renegade courts, then shame on you. This posting should not be “news”.
The constitution as designed by the framers ended with Marbury vs. Madison. The SC was designed to deal with legal, not political, issues. The SC stepped into a political dispute wherein congress should have been left to legislate a solution to the appointment powers of the President. The legislature (congress) punted, glad to have the SC take the heat (as congress has been doing regularly, since).
And yes, it is all terribly inconvenient that there are no legal absolutes under the constitution, but I live in “Realsville”. It is what it is, it is where we are. There is no political will in the country to restrict the courts regarding tampering with the constitution. The entire history of the nation illustrates the lack of stomach for fighting for, or living with, legal absolutes.
We simply waste valuable time, energy and resources going back over “absolutist” vs. “ristrictionist” views of the constitution.
BTW, I am an absolutist in philosophical contemplation of the first and second amendments.
While you are correct, I think a possible solution to this ongoing tyranny of the courts would be to hold the courts accountable to the electorate. If they want to step into the arena politics so bad, then so be it. But then, they should be treated as politicians and be made subject to election. In other words, if they want to wrestle with the pig, then they better be ready to get dirty.
“I think a possible solution to this ongoing tyranny of the courts would be to hold the courts accountable to the electorate. ”
Not sure there is compelling evidence that states where judges are elected provide a more disciplined and circumspect judicial system. The real answer is to force our representatives to hold the courts accountable. The congress sets the number and jurisdiction of all federal courts, including the SC. Since Marbury, congress has been content to not surgically fence in the jurisdiction (place and content) of what the courts can review.
On the contrary, I would argue that if something is truly a right, then the righteous exercise of it has exactly zero impact upon anyone else. And in that sense, the righteous exercise of a natural right is absolute.
“And in that sense, the righteous exercise of a natural right is absolute.”
Therefore, it most certainly should NOT be a crime and our courts most certainly should NOT prosecute anyone for it.
This is another way of saying that our courts are WRONG and we should be looking to correct them. Of course we have to know that something is wrong before we can set out to correct it.
POTG have known all about this “wrong” for decades. What has changed?
Nothing, and that’s the way it is, December 18th 2017.
I tend to agree.
Yelling fire in a theater has victims. Me carrying a gun, or owning a gun does not. The 2nd amendment doesn’t grant me the right to kill people or shoot at them. It only grants me the right to keep and bear arms. leftists entire argument regarding “fire in a theater” is semantic fallacious nonsense. Of course I don’t get to make victims out of the 1st amendment. I don’t get to have religious sacrifices, I don’t get to publish complete total lies about people meant to incite violence. I don’t get to shout lies during situations meant to incite panic and injury. But the 1st amendment and second amendment were never intended to protect those. If they were intended to protect those, you could say they were not absolute, but since they were never intended to protect those, I believe them to be absolute.
Possessing a firearm under the 2A is equivalent to possessing vocal cords under the 1A. Both are protected, you can neither take my weapons nor cut out my larynx without violating my rights.
Threatening to shoot an innocent party is comparable to yelling “fire” in a crowded theater. Both are crimes and should be treated as such.
This is so easy to understand that I must assume anybody who gets it wrong is deliberately lying.
And gun control is the equivalent of slapping duct tape on your mouth as you enter the theater – just to make sure you don’t yell FIRE.
Have you ever considered just why “absolutism” is not argued at court?
You can exercise your “absolute” right in absolute security that you are morally superior. And you can contemplate your “rights” while marking off the days on the wall of your cell.
I alway wonder with no right as an absolute – given the second amendment and the later the thirteenth – under what circumstances can I own a slave?
I think the Civil War effectively answered your question.
I suppose you could have a slave provided you found someone of a perverted mind that enjoyed being treated as a slave, and agreed to be your slave. I’m sure there’s websites where you can meet those kinds of people.
WTH does a slave have to do with “absolute” second amendment application?
Of course there are not absolutes argued in court. At least, not for the average citizen; that would be too restrictive on the use of arbitrary power by the powers that be.
The only absolutes for the average citizen is what they will absolutely not allow as a violation of their inalienable rights by those same powers that be. As our Founding Fathers demonstrated by paying their lives, their fortunes and their sacred honor for that “absolute” called freedom. And won.
“Of course there are not absolutes argued in court. At least, not for the average citizen; that would be too restrictive on the use of arbitrary power by the powers that be. ”
Ever read or heard of any pro-constitutional, originalist, organization presenting any case at court where “absolute” rights are to be adjudicated? Organizations that represent thousands or millions of members/constituents?
“The only absolutes for the average citizen is what they will absolutely not allow as a violation of their inalienable rights…”
And who are these individuals? To date the citizenry is accepting every misuse of power by the congress and the courts. Which underpins the fact that “rights” are not absolute under all circumstances, because “the people” have not risen up (despite more than sufficient cause) to put “the powers that be” in their place.
Spend your talents on something that can be meaningful, rather than fanciful imaginings of enforcing “absolute” rights.
“under what circumstances can I own a slave?”
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
When a law says someone can be made a slave or put into involuntary servitude as a punishment for a crime and that you can be their master.
Dunno why this popped into my head while I was reading this…
If I recall correctly, the three types of Weapons of Mass Destruction as defined by international standards are Nuclear, Biological and Chemical – weapons that are inherently dangerous simply by existing, never mind being in the hands of someone careless/insane enough to use them, even accidentally. Which is why an individual citizen would and should be prohibited from owning them: they are just too dangerous, the owner’s good intentions are irrelevant.
What does this have to do with guns and the Second Amendment? This:
Guns are not a part of that list. Any kind of firearm – be it handgun, rifle, shotgun, machine gun, mortar, cannon or any combination thereof is not a Weapon of Mass Destruction, despite what some hyperbolic types on the Left like to claim.
So is this an example of the Second Amendment NOT being absolute? Yeah, I guess it is… but it also illustrates how far our government has overreached their authority.
[Biological weapons]
“Which is why an individual citizen would and should be prohibited from owning them: they are just too dangerous, the owner’s good intentions are irrelevant.”
That’s quite an argument for (*cough*, ‘humane’) euthanasia of people with certain incurable contagious diseases, you know…
So, you are content to leave all such WMD in the hands of politicians and their minions? Those people who are so much better than you or I, and always handle such powerful weapons wisely… Those people?
If you think about it, any person can create and use a powerful WMD easily, even inexpensively in some cases. A big truck or even small car can seriously injure and kill many people. Ever see what happens when a bottle of bleach is mixed with a bottle of dish soap? Seriously poisonous gasses produced, and especially if the one doing the mixing doesn’t mind being poisoned, very easily used to harm a lot of others.
Just about anyone can drive a car, or buy bleach and soap…
Trying to prevent all harm from WMD, cars or bleach/soap is impossible, and trusting to the non-voluntary government for protection is a very big, sick joke.
“The question is when do those restrictions rise to effectively eliminating those rights?”. Um nope, elimination is not the threshold. Do those restrictions “infringe” upon those rights is the threshold.
“Infringe” is not a threshold. The decision is whether or not the government has a “compelling interest” in regulating certain behavior that otherwise might “infringe” on constitutional rights of individuals.
Bottom line, no matter how often, how loud, how offensive our language, “shall not be infringed” is not even considered sufficient legal foundation for challenging the government. “Shall not be infringed” has effectively protected “gun rights” is precisely zero court cases throughout our history. Carrying banners that claim absolutism only reduces us to a bunch of “phony baloney plastic banana good time rock ‘n rollers”. The courts are not responding to any claim of “absolute”.
You can exercise your absolute, uninfringable rights, but you cannot use that claim to immunize you from the effects of violating standing laws.
“The decision is whether or not the government has a “compelling interest” in regulating certain behavior that otherwise might “infringe” on constitutional rights of individuals.” If that is the case, then virtually every gun law is constitutional because public safety is always a compelling interest.
The government (state and local) is not finding a compelling interest in seeing to it that every citizen is armed, nor that every citizen should be allowed to be armed anywhere and everywhere with whatever weapon the citizen desires. So far, there is no judicial concept of citizenry holding a “compelling interest” in anything.
Sam, read this: https://en.wikipedia.org/wiki/Strict_scrutiny.
Compelling interest + narrowly tailored + least restrictive means = Strict Scrutiny
Compelling interest = So what?
To date, “compelling interest” is restricted to “compelling government interest”. There is no legal concept of “compelling interest” as relates to private individuals. That’s all.
“Compelling government interest” is a fictional concept created for the convenience of governments (which does include the courts). I cannot find the phrase in the notes or letters of the founders; definitely not in the constitution itself.
The test for “strict scrutiny” should be: “Does government action limit or supersede the constitutional, or constitutional rights/powers of the states or individuals?” If so, government is stopped from enforcing or continuing said action.
TX_Lawyer,
“If that is the case, then virtually every gun law is constitutional because public safety is always a compelling interest.”
Yes! That IS the problem! Every time our courts uphold unconstitutional firearm laws, they always claim that such laws are fine for that very reason.
The HUGE problem: any government agency could use that argument to violate ANY right.
Compelling government interest is only one of two or three (depending on how you count) of the requirements of strict scrutiny. The other(s) is(are) that the government restriction is narrowly tailored to the least restrictive means that would achieve the goal.
And the courts don’t blindly accept the governments claim that the laws interest is public safety or that the law even promotes public safety.
“And the courts don’t blindly accept the governments claim that the laws interest is public safety or that the law even promotes public safety.”
Nor are the courts very skeptical. If “compelling interest” fails, courts will find an argument for intermediate or rational basis. The courts seem to ascribe to the idea that government generally knows what it is doing, and interfering is not helpful.
“The HUGE problem: any government agency could use that argument to violate ANY right.”
Welcome aboard !
What took you so long?
“Compelling government interest” has been used countless times to restrict constitutionally protected rights of the people.
Uncommon_sense, that’s why I have stated that rational basis to strict scrutiny paradigm isn’t the argument we should be making. There are plenty of tests that have been used for various rights that didn’t have anything to do with scrutiny. Applying the scrutiny approach to the 2A is lazy and inappropriate, so that’s what courts are likely to do.
For example of a test not on the scrutiny scale, in his dissent from the denial of cert in Friedman v. Highland Park, Justice Thomas has basically said that the test for whether or not a specific category of arm is protected is whether the arm is in common use and is predominately used for lawful purposes.* That test has nothing at all to do with any level of scrutiny.
*Roughly five million Americans own AR-style semiautomatic rifles. See 784 F. 3d, at 415, n. 3. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. See ibid. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons. See McDonald, 561 U. S., at 767–768; Heller, supra, at 628–629.
Don’t forget tits or ass…
The argument is correct in a state where civilization does not exist. Further the 2a is an effective check to balance a tyrannical government similar to say a progressive socialist one. Give up the 2nd amendment and you could be facing something similar to the final solution in the Nazis in Germany before and up to the end of WWII.
Realistically, IMO, the only folks today that could be theoretically in peril of facing/enduring the horrors of a genocidal, final solution are the tyrannical gun grabbers (aka Liberal Terrorists™️) who might momentarily obtain control of enough of a majority in governement to attempt to subvert our Founder’s intentions and fundamentally infringe upon our 2A Rights. “It is no longer enough to be willing to fight and die to preserve our rights, one must be willing to kill for them, too.”
There is daylight between “absolute” and “reasonable restrictions” (a theory with significant judicial history as a basis). The idea that not clamoring for “absolute” is equivalent to surrendering the second amendment has no basis in history or current fact. As I have argue time and again, everyone accepts that infringements are necessary; we disagree over which infringements are acceptable. Thus, 2A is not an absolute.
The minute you equivocate for, “Yeah, but…felons/crazy people, etc.” you are accepting “reasonable restrictions.”
The free exercise of natural rights is a liberty afforded only to those who do so righteously. Through due process, one who has demonstrated harm can be removed from the pool of free men.
There is a difference. In this case, the state action is carried out against the person, through due process. It is not state action carried out against a tool, or society as a whole.
…which is why I make no such advocacy.
I believe that, once a person has completed their sentence (incarceration and probation), all rights of free men should be restored. If someone has demonstrated that he is unfit to exercise such freedom, then he should not be released back into free society at all.
To have effective meaning (and the meaning we want it to have) “absolute” must have an immutable definition. There can be no concept of “absolute, except for…” Indeed, 2A does not provide any room for exceptions resulting from “due process”. Once you get to “except for”, “absolute” has no useful meaning. Under your convention, if a locality exercised “due process” of legislation followed by proper enforcement, I can use “due process” as the justification for full banishment of firearms (or whatever).
“Absolute” is absolute. No exceptions, no how, no way. Else it is an Alice Through The Looking Glass term that means “whatever we say it means”.
Natural rights are those granted us by our Creator and include to right to life, liberty and the pursuit of happiness.
God (our creator (in my neck of the woods)) created man in his own image. In so doing, he also gave man the same rights that He posses, namely the right to self-preservation.
Self-preservation includes almost every situation a person can encounter in life. The Framers did a good job of setting the framework for governing the United States such that men were guaranteed to be able to preserve their self under any situation as well as enjoy their natural rights.
The Bill of Rights provides guarantees for self-preservation using its system of laws as the foundation for all future laws that “the people” determine are necessary and proper in order to preserve, protect and defend the Constitution from all enemies, both foreign and domestic.
The Framers knew well the weaknesses of men who are exposed, over time, to unguarded temptations bearing no penalties for abuse. To counter such occurrences specific lengths for the public service of men chosen to represent the voices of the people that elected them were established from experience.
Lengths of service during which men would not have ample time to fall to those unguarded temptations were included in the Articles of the Constitution. We call those periods of service terms. Since we elect people to serve us for specific periods of time we are expected to decide whether or not those people have served us and the United States honorably and in accordance with the Constitution during their time in office. If we decide that they have not always kept to the Constitution it is our duty to remove them from office when their term comes to an end. We must never reelect anyone that has not demonstrated exemplary performance, honorably and patriotically, for the entire time they serve. Doing so is tantamount to disaster such as we see coming now.
The Framers decided that they could not frame a constitution that would compensate for every illegal act and event. Instead, they framed the Constitution based on the men chosen to represent the citizens of the United States being honest, honorable, faithful and patriotic having a character that would not allow them to violate any and all laws.
We the People of the United States of America are those that govern America, not those we chose to be our voices in managing our country. Government in the United States would not exist if it were not for the people. IF we should, as a majority, decide not to elect anyone, government would cease to exist.
Thus, We the People have a the duty for insuring that the quality of government we create, and maintain, is of the highest quality possible and in full compliance with the Constitution, as written and legally amended according with Article V. thereof. At this time, we the people are falling way short on our obligations.
Keeping our country a Constitutional Republic and insuring that every citizen has the same rights as another is our responsibility, not someone else’s. Our voices will not be heard as individuals. We must speak as communities of citizens having the same voice about a particular issue in order to be heard and effective.
Americans today have been fooled in to complacency by forces that be within and behind the scenes of government for the purpose of obtaining free rein and control over the American people. They have accomplished that to a high degree.
Each of us must work hard to reestablish “community” in our towns and cities. We must rethink our priorities and place government right beneath God in order of importance.
Self should always be the last of our priorities.
“Can you yell ‘FIRE!’ in a crowded theater?”
Well, as far as I know, there’s no law against it. Especially if there’s a fire. What you’ll get in trouble for is inciting panic and people getting hurt because of it.
It’s the lamest example ever used for restrictions on Constitutionally protected rights.
Remember this GINORMOUSLY important distinction about First Amendment and Second Amendment comparisons:
First Amendment free speech does not allow you to yell Fire! in a crowded theater — so government can require that you lock a gag over your mouth, before leaving home, to ensure that you cannot possibly yell Fire! in said theater (or anywhere else in public), right? Neither can government require that you disarm when leaving home to ensure that you cannot possibly attack someone in public with your firearm.
Actually, to extend the analogy appropriately, applying second amendment-impacting restrictions to first amendment-protected acts, the State would have authority to prevent the carrying of a Bible, and to cut out one’s tongue, in order to prevent speech.
Well…..
Government could create something called “hate speech” that would be determined as any speech that offends another person.
Nah. That can’t happen here.
The critical difference is that, even with “hate speech” laws, the laws cannot prohibit the utterance of the speech; they can only penalize the utterance after it happens.
The government preempts your speech when you self-limit your words because of the possible consequences. I would call that prior restraint. Look at what is happening to the language.
Or to pro-actively duct-tape patron’s mouths shut upon entry to a theater.
After all, the danger to other patron’s health if a stampede were to happen if someone falsely yelled ‘Fire!’ during a performance…
A lot of “those people” believe while the Founders were busy enumerating the inalienable rights upon which the government is forbidden to infringe, they suddenly got all concerned with protecting the government’s right to keep and bear arms (i.e. all that militia crap).
RF you make some great points but they will never penetrate the depths of the safe places those people are hiding in.
Actually: yes, you can. And under the legal concept of prior restraint it would violate constitutional protections to prevent such speech.
The legal precedent is very clear: the utterance must first take place, and then harm from that utterance result, before the State can take action. It is not the speech that the State can act against, but rather the harm caused by the speech.
The appropriate analogy for the second amendment – as alluded to in the OP – is that the harm caused by the use of a firearm can be acted against, but not the use of the firearm itself, much less, the mere carrying of a firearm.
In this analogy, the mere carry of a firearm would be analogous to the carry of a tongue, or a pen.
Well said!
There are plenty of situations in which prior restraints of speech are allowed. A big example is gag orders from courts.
Probably not the concept the general public would view as “prior restraint”, but you are dead on.
Thanks
The fundamental difference, though, is that a gag order is a) binding only on specific entities, not the populace as a whole, b) temporary, and c) enacted through due process toward the entities subjected to it.
By contrast, a law is a) binding on everyone, b) permanent, and c) enacted without due process toward the entities subject to it.
When I hear prior restraint, I first think of the Pentagon Papers case which was “a) binding only on specific entities, not the populace as a whole, b) temporary, and c) enacted through due process toward the entities subjected to it.”
When you google prior restraint, the definition that comes up is “judicial suppression of material that would be published or broadcast, on the grounds that it is libelous or harmful. In US law, the First Amendment severely limits the ability of the government to do this.”
But prior restraint is a weird thing where someone says “I going to do something illegal” and the government (or often a private party) seeks to enjoin the action (have a court say “don’t do that illegal thing”), and the court says “that’s totally illegal, but we aren’t going to stop you from doing it; we’ll just punish you after you do it.”
There are things like free speech zones, the PATRIOT ACT monitoring etc. that are violations of the constitution. While some of these people may lead you to believe these are just and moral, the truth is they are equally as wrong. Libs were even willing to admit this in the early 2000s.
True – no right is absolute. When the supreme court applies the same strict scrutiny to infringements of the second amendment that it does to the first, then, and only then, am I willing to have that conversation.
I prefer the 13th Amendment for that comparison, because the “justices” (Klansman included) that supported the Korematsu decision also supported the Miller one.
The fundamental problem here is that our nation no longer operates under Common Law, which requires a victim who suffered physical, financial, or property damage against their will, in order for the state to declare that a crime occurred and prosecute the perpetrator.
These days, the state can declare that wearing a black shirt is a statement of allegiance to ISIS and therefore a felony — and there would be jurisdictions where the police, prosecutors, and courts would uphold such a law. We have to get back to true Common Law in this nation and all silly laws — including firearm laws — go away.
The liberals have it wrong about rights. You absolutely have the right to shout fire in a movie theater. But just as with the use of a firearm you are also responsible for the consequences. If you yell fire as a joke and a riot ensues you are subject to criminal and civil prosecution. Similarly if you decide to discharge your a firearm indiscriminately (i.e. Other than in self defense) you are subject to criminal and civil prosecution for your actions.
“I have a right to…” is no defense when one is facing criminal charges for causing harm to another person. That is very different from criminal charges, with draconian penalties, that are designed solely to suppress the free exercise of a core, constitutionally enumerated right. The state Supreme Court of Delaware has recently exposed the Achilles’s heel of all anti-gun legislation. They struck down a state law, that criminalized carrying firearms in state parks, because the state failed to provide any evidence “that outlawing possession of firearms in an area makes law-abiding citizens safer because criminals will, for some reason, obey the regulations,”.
Given that the “shouting fire” argument was used to justify government PRIOR restraint on free speech, it would behoove everyone to understand the context and SUBSEQUENT context of that phrase…
Shouting fire in a crowded theater
https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater
In short, I do not think those words mean what you think they mean.
Not to mention that Oliver Wendell Holmes reversed his opinion later.
It’s Time to Stop Using the ‘Fire in a Crowded Theater’ Quote
https://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/
In a civilized society, we don’t wait thousands to die of food poisoning to prosecute the perpetrator, we use common sense measures to prevent this from happening. Same is with free speech and firearms, civilized and wise people do not wait for trouble to happen, they try to avoid it in advance. Many gun owners seem to be stuck in the stone age.
The problem with your “common sense” is that the delusional and totalitarian progtards of the Obumer coven have a religious fervor that tells them that THEY are the sole source of such “common sense”.
About that “religious fervor”. Why is it 2A defenders do not have it?
Anti-gunners are not puritanical about means and methods; only results matter. 2A defenders are all about means and methods, fractured, and Talibanistic. How do we reverse those deep-seated convictions that only “my” solution is correct; anything less is to be denounced and defeated.
Kinda like the current contest over “tax reform”. Look at how many people (left and right) are demanding that there be no benefit to anyone if the legislation does not enshrine whatever demand is the hot button. How silly is that?
How silly are we?
In a civilized society we do not tell an individual he is not allowed to have the means to defend himself from someone with no regard for the law or lives/safety of others.
This OP is on the right track; but, the analysis is incomplete and therefore, partially flawed.
The key words are: “right”; “the People”; “keep”; “bear”; and “infringed”. And, the ultimate (not fundamental, but ultimate) purpose is the “security” of a “free state”.
From this perspective, the Federal government can adopt all the gun laws it wishes but it is absolutely bared from “infringing” upon the “right” of “the People” to “keep” and “bear” “arms”.
We PotG are all too eager to take-the-bait when the Antis ask if we think a suitcase nuke is an “arm” protected by the 2A. Why should we be so stupid? What are the up-sides and down-sides from biting on the hook they baited for us?
Instead, we should ask: Is it within the “right” of an adult law-abiding woman to “bear” a 2-shot derringer on the streets of NYC? This is a real honest-to-goodness practical question facing defenseless women who reside in that city. Likewise, the elderly and disabled. We ought to answer this question first; eventually, we promise to take-up the suitcase nuke.
If the 2-shot derringer fails to fall within the “right” then there is no point in discussing a 5 or 6 shot revolver. Conversely, if the derringer if found within the right then we can consider the revolver. And so on with respect to single-stacked and double-stacked semi-automatics. Now, we have actually answered useful questions about “arms” and “bear”.
If we get this far then we can talk about whether the “right” is to open-carry, concealed-carry or both. What would it mean to say that our hypothetical woman has a “right” to “bear” but NEITHER openly nor concealed? That’s the state of California!
By pursuing such a rhetorical strategy we will soon smoke-out the Antis and get them to admit that THEIR idea of the “right” is a nullity. And THAT is where we need to maneuver them.
The Wrenn vs. DC decision is the line of judicial reasoning that we need to pursue. That is, the “average” citizen has a “right” to “bear” a handgun in the capital city of our government. If so in DC, then it follows (from McDonald) it is so throughout the US.
Presumably, the Won’t-Issue States will impose requirements to acquire a CWP. Thereupon, we will have to fight about: fees; training; testing; and, qualification. And – yet – none of these would be allowed by the courts to exclude the “average” citizen if Wrenn is upheld in the other Circuits or SCOTUS.
For the 2A to be sustained it is not NECESSARY that ALL citizens be armed; i.e., 100%. It will be sufficient that ANY citizen who wishes to be armed COULD surmount the obstacles. Gradually, the blue States will achieve 1% – 5% – 10% – 15% of average citizens going armed lawfully. And then – their streets will run CLEAR WITH RAIN-WATER! Not blood. And, the remaining un-armed voters will see that there is nothing to fear from guns and their lawful owners.
I really like your thinking about how to step-up the reasoning from derringer to pistols. But, (you knew that was coming) the anti-gun crowd cannot be persuaded to move even an inch from “no guns for nobody”. There will sometimes be the random case where an anti-gun person suffers an experience that changes their attitudes, but generally there is no audience for re-thinking a belief as personal as the Id (the part of the psyche, residing in the unconscious, that is the source of instinctive impulses that seek satisfaction in accordance with the pleasure principle).
Living in “Realsville” is sometimes a pain in the patootie.
“the anti-gun crowd cannot be persuaded to move even an inch from ‘no guns for nobody’.” Then let them make that argument and be seen as the extremist they are trying to paint the 2A people as. That’s the result of MarkPA’s argument. You could even start with saying the SC has only ruled that the government can’t ban handguns in the home or the sale of stun guns and tasers.
TX, you have it precisely! In any debate there are 3 parties: Pro; Con; audience. Forget about the “Con” – the Anti. He is NOT your audience. Your audience is someone who might be persuaded by the better side of the debate. Getting the Con to make a claim that seems unreasonable, irrational or outside the law puts him in the bad position and the audience can see this.
If the Con says that the 2A means nothing whatsoever then what could we make of that? Is the 2A the only element of the Constitution that means nothing? Or, if one “right” means nothing then is it possible that there could be another right that means nothing? How is it that the 2A came to mean nothing. This is a hole that the Anti can’t climb out of.
The derringer is the modern arm that most closely approximates the single-shot flintlock pistol that was carried by a gentleman in the founding era. If no right to the derringer then what is the “arm” that’s protected. Caetano (stun guns) was an 8/0 opinion that completely guts the “only musket” argument; as does the internet vs. the “freedom of the press”.
Setting the context as a law-abiding adult woman citizen is our best-case scenario. Why should we choose anyone other than a “poster-child”.
Painting anti-gunners as extreme should have been done, should have been done effectively, long before today. The problem for 2A supporters is we are culturally disposed to leave others alone. And we expect the same in return. We are defensive minded. We do not bully others, but if bullied we respond with, “Smile when you say that mister”, implying a readiness and willingness react with meaningful force. When Florida began to attack the notion that guns should not be in the hands of private citizens, every pro 2A organization in the country should have begun an endless campaign painting naysayers as extremists. We lost the initiative.
The purpose of the 2nd Amendment is…as written…the security of a free state. Implying not so subtly, that the arms to keep and bear should be sufficient to overcome the enemies of the state. I suppose that if the enemy has been shown to carry only single shot derringers, then a two shot derringer might be sufficient.
You aren’t making the best case argument.
“The right” runs to “the People”, not to the militia. So says Heller.
To what end(s) were “the People” understood to have “the right”. Let’s reason together from the ground-up. Let’s begin by admitting that we don’t know. In the era that led-up to the People’s understanding, arms were used for a variety of purposes; hunting, fowling, defense against fauna, against Indians, pirates, amusement in marksmanship competitions. In the absence of the reference to the militia in the prefatory clause, which of these might have been included/excluded? Perhaps, the founders only intended for arms to be used for defense against fauna. The argument might be raised that surely the drafters of the Constitution had no intention of authorizing use of arms against the government! But, this line of reasoning is foreclosed by the prefatory clause. The founding generation saw fit to sanction – in particular – the “necessary” objective of “securing a free state”. So, we know that THAT objective was certainly included. But is is error to assume that THAT objective was to the exclusion of all other possibilities.
We can easily ask ourselves whether it is rational to imagine that the founding generation would have ratified a “right” that was NOT understood to include: hunting; fowling; defense against fauna, Indians, pirates? If it was understood NOT to include defense of self against common criminals? Whatever it is that was contemplated by “the right” certainly included these common and necessary activities of the era.
To secure the 2A in our modern era we are most interested in defense of self against common criminals. It doesn’t do us much good to continue to rely on hunting and fowling in an increasingly urbanized population. If we can’t maintain a widespread recognition of the necessity to “keep and bear arms” for defense against criminals then we will soon have an overwhelmingly urban population with no affinity for arms whatsoever.
By clinging EXCLUSIVELY to a “militia” purpose we leave ourselves wide-open to a gracious progressive argument that the only guns that are “necessary” are rifles kept locked in militia arsenals that can be used only at ranges. And, the ranges won’t be within the borders of any major municipality.
We need to build and maintain – in the general population – a widespread notion that arms really DO serve a purpose in contemporary civilian life. Heller and McDonald did this for us; for which we must ever be grateful. But, it fleshed-out only “handguns” and “in the home”. It shed insufficient light on the “bearing” of any arms outside the home.
The single easiest and most important next step to take is to build the recognition that a handgun is an “arm” that serves to protect the vulnerable – most importantly women – outside the home. Get the Antis to deny that a 100 lbs. adult law-abiding woman has no right whatsoever to fend off her 250 lbs. rapist with a handgun. We don’t need a machine pistol; a revolver will do nicely.
We we can’t get a solid majority of the voters to recognize a woman’s “right” to a revolver then why should we imagine that the voters will be enthusiastic about OFWGs with machine guns? THAT argument is better left for discussion after we have built a solid foundation with women, revolvers and dark streets.
In no way is my argument intended to cling EXCLUSIVELY to a “militia” as justification, and I don’t believe it does. But rather to the end goal of security. But the mere mention of the militia (as one justification) requires that we consider the purposes of their arms and to what extent an enemy might be armed. The only conclusion that can be reached is that a militia be sufficiently armed so as to overcome an enemy (and his arms). I am not willing to give the enemy the benefit of doubt and assume that he will use the smallest stick, club, or other weapon among those available to him. I want to have the bigger stick.
Robert, not that your argument doesn’t make sense, but you are wrong, I found this article to be most enlightening.
https://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/
I should say it is not that you are completely wrong, I just thought this article explained the history of it very well.
Nearly all of the restrictions imposed on Americans wishing to exercise their 2A rights involve “prior restraint” of that right. Restrictions on the 1A are nearly always “post restraint” in nature. That makes a difference.
In the public mind I don’t think it buys us much to talk about the right to bear arms and the right to enter a crowded theater without duct tape on our mouths. After all the (correct) reasoning is articulated, the audience will still realize that the gun in the hand of a stranger frightens him more than the cry “FIRE!” in a theater.
So, whenever you conclude that an argument isn’t likely to persuade your audience then it’s time to consider which alternative arguments might more effective. Why not concentrate our arguments on the MOST effective arguments we can think of?
Who populates the audience that stands before you at the moment? A bunch of constitutional lawyers? Fine, then arguing fine points of logic and law might be most persuasive. A gaggle of soccer moms? Well, how about asking whether they think a larger “gun-free zone sign” on their children’s school door would be more effective?
Shouldn’t we first examine the security measures the school has in place for delaying entry of un-vetted visitors? Then ask how long it takes for the police to arrive at the school? And whether it’s acceptable to allow a terrorist or crazy person that much time of unopposed shooting with ANY action gun (even single-shot rifle)? Is it acceptable to imagine 6 children shot in 3 minutes?
All gun control attempts are about “feelz”. All gun control supporters are about “feelz”. Most “undecided” are about “feelz”. Arming vulnerable women? More likely they will have their gun taken and used against them (because as a woman I feel certain that would happen to me).
There is a school nearby, and one day I called the principal to ask about the school being a gun-free zone. It was a pleasant discussion, but short. I asked if the principal really believed gun-free zone laws and signs were effective defense against armed attack. His reply was short, sensible and elegant: “We have had this school here for twenty five years, and have never been attacked; seems to be working.”
Impenetrable logic.
Meh…I too believe in no restrictions of the 2nd. But like the never Trumpers I distanced myself from this old guy lives in reality. That’s all I got…
Simple question: what are the limitations on the Thirteenth amendment?
Are there some conditions where slavery is sort of ok?
I don’t think so which sort of kills the whole “every right has limitations” argument…
Go read the 13A and then tell me the precise conditions in which the 13A explicitly says involuntary servitude is aok. Because it does.
The huge logical weakness of the “absolutist” argument is that it falls upon the admission of the first exception discovered. E.g., does a condemned man have an “absolute” right to arms to defend himself against his executioner? If that is an exception that everyone in the audience deems an implicit exception then the rule (Constitutional right) is logically NOT absolute.
The word “absolute” does NOT appear in the text. Instead, we find the word “infringed”. We should be arguing about what sorts of laws would constitute an unConstitutional “infringement” on “the right” to “keep” or “bear” “arms”. What’s so hard to do in this respect?
Isn’t it obvious that the “Won’t-Issue” regime of NY City constitutes an “infringement”? That was obvious enough the DC Circuit’s panel – and even the entire bench – in Wrenn vs. DC. Gentle Antis, please explain why the DC Circuit’s Wrenn decision was erroneous?
*MY* common sense tells me that a condemned man is not a member of “the people”.
OK, so, how about the lawyer who has a duty to interview his client in prison. The lawyer has an unfettered right to defend his life; even against his client. May he enter the prison, even the lawyer/client consultation room bearing arms?
How about someone who has an appointment with the president in the oval office. Does he have an unfettered right to enter the White House strapped?
Use your own imagination. Think of all kinds of scenarios where a righteous adult citizen might have a need to go and yet there is some persuasive argument that this context is one where he ought not be armed.
Assume, for the argument, that you are not imaginative enough to find such an example. Nevertheless, our objective (under an “absolutist” argument) is to persuade our audience (voters, legislators, judges) of the merits of our righteous position. How lucky do you think we might be? With all those audience members working on it, don’t you suppose they might be imaginative enough that they will come up with at least one case where they are in consensus that that one is an exception they all agree falls outside the scope of the 2A?
We are having a tough time getting National Reciprocity through the Senate! Think of this. We have 40 Right-to-Carry States with 80 Senators representing them. Still, the Democrats have no difficulty pulling together 41 votes to threaten a filibuster.
The “absolutist” argument is conspicuously self-defeating. Is that what we, the PotG, are all about? Adhering mindlessly to an argument that is self-defeating?
The 13th repealed constitutional provisions. The 13th established, invented, codified, reinforced, conferred no “right”. The 13th repealed the right of states to hold people as property or indentured servitude. The first 10 amendments deal with “rights” related to personal freedom, and constraints on the government. Of those, 1,2,4,5,6,7,8,9,10 are constrained by legislation, or court rulings, or a subsequent constitutional amendment. Constraining the constitution via legislation is most dangerous, but most acceptable to the people. Constitutional amendments are hard to accomplish, and are an archaic concept when life changes so fast in modern times, so legislation (and court rulings if they go your way) is the tool of choice who believe the constitution should not stand in the way of doing the right thing.
The other amendments deal mostly with issues other than the BOR (note that in all this time, no other amendment has been included in the designation of BOR, even the 13th).
Using a non-BOR amendment to “prove” some rights are absolute is indicates only a passing acquaintance with the constitution, the founding, and “rights”.
#StupidAnalogies – GCer analogies that prove the opposite of what they think. See also #AllTheyveGot
For example arguing: “No right is absolute. You can’t shout ‘Fire!’ in a crowded movie theater.” suggests your right to bear arms can’t be restricted until you misuse it. Indeed, just like shouting “Fire!” when there is one can save lives, shooting when there’s a maniac killing people can save lives exactly the same way.
“Countering Gun Control Advocates’ “No Right is Absolute” Argument”
GCA: “Blah, blah, blah, blah … no right is absolute.”
AI: “Nice of your to recognize the right to keep and bear arms.
GCA: “Sputter, screech, babble, glerp…”
IA: “No, no, I wanna hear you out. So, explain how your justification rises to the level of suppressing a right? Or explain how your scheme is the least invasive means for that? Either one first.”
GCA: “But deaths. And every civilized country does this. And gun culture. And, and, and…”
AI: “Um, splattering me from your exploding head is gross. Get a grip and go ahead. Let me help: ‘Because it’s a right, restricting it requires a high level of empirical evidence for the necessity, the scheme’s effectiveness and it’s minimal cost. So the evidence is…'”
/Meta: Conveniently, all the arguments fall under restricting a right which they have already conceded with the analogy to speech. As commented above, for example, we don’t cut out people’s tongues because someone might yell “fire” in a crowded theater … this isn’t how we treat rights. The “‘Fire!’ in a crowded theater.” one is particularly lame.
GCA: “No right is absolute. You can’t yell ‘Fire!’ in a crowded theater.”
IA: “What a wonderful analogy for bearing arms! We want people to be able to yell ‘Fire!’ when there is one, just like we want people to be able to shoot bad guys when they’re killing people — both save lives.”
/Meta: They will lose their marbles. You can go anywhere you want from here: We don’t gag people. Nothing wrong’s been done until somebody shoots not a murderous bad guy. Etc.
GCA: “But things. Also, stuff. For the children! And nobody needs a gun. And there aren’t that many gun owners. And you all are expendable anyway.”
/Meta: Use the force, Luke. Stay on target.
IA: “Oh, suppressing speech is a big deal, just like suppressing self-defense. Either is stopping people from acting on their own behalf.”
GCA: “No, it’s not the same. Not at all. Not a bit. Also …”
IA: “No, no pretty much the same, as you said. That’s a good rule of thumb, actually. If you’re messing with people doing things for themselves, you’re probably messing with a right.”
CGA: “But guns make me uncomfortable. And I have a right not to be (irrationally) angsty. And it isn’t that big a deal ..,. do you have to carry your gun *everywhere*.”
IA: “Oh, no. We don’t mess with rights because somebody might feel bad. (What would that do to understanding each other, compromise, or even learning anything?) I mean, you’re making me uncomfortable right now, but you still have the right to talk.”
/Meta: Pairing “feel bad” with “learning” drags in college safe space follies, without being too on point. Everybody will think it. But you didn’t bring it up.
/Meta /Meta: There is nothing wrong with crafting messaging to tie them in knots with their own words, to use their gross propaganda to make them look like schmucks, to back foot them. They are not honest brokers: they are neither seeking to build understanding, nor to search for consensus. This isn’t a friendly conversation, or even an honest debate. Play nice when they do. Otherwise…
– When they don’t have a case, make them make their case.
– When you have a case, presume it; make them state your argument and refute it.
– Never, never, never accept their framing of the issue. (Even when it’s the right framing, moving off dumps their pre-loaded scripts.)
The shouting fire argument is foolish. You HAD your right to freedom of speech before you used it to hurt innocent people in the theater. Comparing that to gun control is like saying that we will prevent the scenario by cutting out everyone’s toungs or banning the word fire.
Here is the argument I would have in response: “Of course I agree that the government can punish you for shouting fire in a crowded theater (that isn’t on fire) so as to cause a panic which results in people being injured if the law is properly crafted so as to not overly burden the 1A. I’m sure you’ll agree that the government can also punish you for firing a firearm in a crowded theater (in a situation that doesn’t justify the discharge of a firearm) so as to cause a panic which results in people being injured if the law is properly crafted so as to not overly burden the 2A.”
In this case, the limits of the 1A would literally be the same, almost exactly the same, as the limits of the 2A. Furthermore, as Richard Steven Hack and Travis pointed out, the “shout fire in a crowded theater” is from a SC case that is regarded as bad law, i.e., it is an old case that has either been overturned or limited out of existence, like many other cases limiting the 1A.
“In contrast, residents who want to carry (i.e. “bear”) a firearm in Texas have to get a government permission slip; requiring an application, fingerprinting, background check, four hours of training, a shooting test and a fee. That is clearly unconstitutional”
I highly doubt that SCOTUS would find a “shall issue” permitting system unconstitutional, as long as the following conditions are met:
1) The citizen is presumptively entitled to a permit
2) Training requirements are not excessive (likely 8-16 hours would be the maximum since this is typical for armed guards)
3) The cost of the permit and training are not so high as to exclude even the poor from obtaining permits
Assuming the the 2nd Amendment is accorded the highest level of protection (strict scrutiny) government must prove that there is both a compelling reason to regulate the right (compelling is a very strong word – essentially meaning that government is forced to act) and that the regulation that is implemented is the absolute least intrusive that accomplishes the “compelling purpose”.
Essentially, rights protected by “strict scrutiny” may be regulated only when a government can prove it has no choice but to do so AND can also prove that there is no other less intrusive or restrictive method that will work. While we have won many victories under the lass stringent “intermediate scrutiny”, what we need is strict scrutiny. SCOTUS has yet to decide this issue – and the more justices Trump appoints the better chance we have of getting strict scrutiny.
What could change that would make permitting requirements unconstitutional? Well, the most obvious thing would be if permitless, or constitutional carry continues to spread and there continues to be no more problems with permitless carry than with permitted carry. In that case, it would be clear that requiring permits accomplishes nothing. At that point, a permit law would fail the “least intrusive” test and likely the “compelling need” test too.
That is why it is so foolish for the other side to delay CCW reciprocity and nationwide “shall issue”. From their point of view, the longer they wait – the worse it gets.
Let’s play a game. It’s one of my favorite games! I’m going to change the words slightly, and see if they still sound reasonable:
I highly doubt that SCOTUS would find a “shall issue” voting system unconstitutional, as long as the following conditions are met…
(SCOTUS buying into any system in which citizens must first obtain a license to vote has the same probability of the Colts winning the Super Bowl this year. Note that registering to vote is not a license, and is a means to ensure that each person’s vote counts fully, by preventing the ineligible from voting, or the eligible from voting multiple times.)
1) The citizen is presumptively entitled to a permit
(See above, wrt the inherent constitutional problems with any vote-licensing system.)
2) Training requirements are not excessive (likely 8-16 hours would be the maximum since this is typical for poll workers)
(Can you just imagine the caterwauling if someone proposed a training requirement in order to vote?!?)
3) The cost of the permit and training are not so high as to exclude even the poor from voting
(Are you kidding?!? The cost/burden of obtaining a State ID – even when the state will issue them for free – is considered by some to be an unconstitutional burden on the poor’s exercise of the right to vote.)
Second amendment protections are lucky to be given intermediate scrutiny. Most existing gun laws have been upheld under a rational-basis review.
“Compelling” means necessary or crucial government interest.
Is preventing criminals from possessing firearms a compelling government interest? Is preventing crime a compelling government interest? At what level of government?
Constitutionally, it certainly isn’t the federal government. It might not even be the state-level government. One could argue that these interest are, at best, compelling for the local government (i.e. Sheriff jurisdiction) only.
(Note the difference here between compelling – i.e. necessary or crucial – vs. preferred – i.e. “nice to have.” And notice them in the context of the stated government interest: i.e. the prevention of crime, as opposed to meting out justice after a crime is committed.)
Requiring every law-abiding citizen to jump through legal hoops in order to obtain a license that the state presumes that those citizens are entitled to be given is the exact opposite of “least intrusive”.
You left out that, under strict scrutiny, the infringement must be narrowly tailored to achieve the stated government interest.
Every gun law ever written fails this standard. Any law that is demonstrably ineffective at achieving the stated interest, by definition, cannot be narrowly tailored to achieving that interest.
So, let’s take it from the top:
1. Government interest:
Preventing criminals from possessing firearms, preventing firearm-related crime, preventing crime in general
2. Compelling interest:
The federal government has no compelling interest in these matters. It is possible that no level of government has a compelling interest in these matters.
3. Narrowly tailored to achieve interest:
Establishing licensing requirements for the law-abiding is not narrowly tailored to achieve the stated interest.
Licensing is not narrowly tailored. Every act of exercise of the constitutionally protected right to bear arms by the law-abiding is impacted by licensing.
Further, licensing does not achieve the stated government interest. Licensing has no impact on the rate at which criminals possess firearms, use firearms to commit crime, or commit crime in general. (Except that where it is burdensome for the law-abiding to obtain a license, crime in general increases – which would argue that licensing actually counteracts the stated government interest.)
4. Least restrictive means:
Placing a burden on millions of law-abiding people in the exercise of a constitutionally protected right – a burden that will not be borne by the lawless it is designed to compel or constrain – cannot possibly be the least-restrictive means to achieve any interest.
A less-restrictive means might be to place a “prohibited person” indicator on the state-issued ID of a prohibited person – that state-issued ID being required to be presented when purchasing a firearm.
A less-restrictive means might be to increase minimum sentencing for violent crime, so that repeat offenders do not have the opportunity to obtain a firearm to be used to commit crime in free society.
Whether the Constitution would admit to prerequisites of training, testing and qualification is something we can argue about, but we won’t know (for a long time) what SCOTUS will rule.
We need to think about what is politically achievable. And, what serves our purposes vs. impedes our purposes.
Personally, I’d take this “training” issue head-on. In America, as originally constituted and as it exists today, is populated by 320 million souls and a like number of guns. The probability of any one of then inadvertently coming upon a loaded gun is enormous. Public safety is a compelling argument to train everyone; or, just about everyone. That introduces a Constitutional question: Does Congress (or any State) have the legitimate power to compel training?
The question is easily answered. Congress is empowered to “prescribe the discipline for the militia” and the States are assigned the duty to “train the militia according to the discipline prescribed by Congress.” Congress need only take-up it’s pen and do what it is explicitly empowered to do. The States have a duty to train. Congress would need only include school girls as prospective militia members to provide near 100% coverage. Most children are educated in public schools so the infrastructure is already in place.
Eddie Eagle for grammar school; gun handling and marksmanship for high school. Just about all of us learn to drive cars; the same could be said for gun safety and use. There is absolutely no Constitutional impediment to so prescribe; and, the safety issue alone justifies the need.
There are all sorts of “rights” that come with corresponding “duties”. E.g., does a lesbian have a right to serve in the military or police force? I don’t know; but, if she does, then does there come a duty to learn to shoot to the standards of the force she works for? Does a person-of-color have a right to serve on a jury or vote? If so, doesn’t he have a duty to follow the instructions of the judge of the courtroom or polling place as to orderly conduct? When the prescribed duties are imposed uniformly on the population, the opportunity for onerous impediments are naturally limited.
Also, bear in mind, that there are some people in every jurisdiction who WILL be authorized to bear arms. Judges, prosecutors, political contributors, celebrities, armored-car drivers, body-guards. The standards will not be set so high that they infringe on the rights of these people who are so important to the elites.
We would be much better off with a Shall-Issue law including training, testing and qualification then we are with “Won’t-Issue” laws that preclude the most qualified of us from any prayer of being issued a permit.
Interesting.
Thanks
If strict scrutiny is what you say it is, then Constitutional Carry states prove that any licensing regime is unconstitutional.
One can absolutely yell “fire” in a crowded theater… just suffer the consequences. The anti/progressives want your tongue ripped out.
“No Right is Absolute”
Which right will keep me from taking away, all your others?
How absolute is it?
You better pray.
The main problem with the Anti’s argument is that they think it justifies all manner of extreme gun control laws. Yes, of course the right to keep and bear arms is not absolute, nor is the right to free speech or the right to privacy. BUT, the major difference is that infringements on those rights are only allowed under very narrow circumstances, whereas gun control proponents think that saying the right is not absolute therefore allows them to pass any and all manner of gun control that they want. That is wrong. The RKBA not being absolute does not justify the absurd laws such as assault weapons bans, or magazine capacity limitations, and so forth.
Very compelling argument!
Let’s flip this upside down and look at using the 1st to support the 2nd.
Brandenburg v Ohio (1969) is the legal standard by which restraints on free speech are measured, as opposed to the fire in a crowded theatre scenario.
“Freedoms of speech and press do not permit a State to forbid advocacy … except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Instead of comparing the two amendments, perhaps there is value in using the 1st to bolster the 2nd.
Advocating for the second amendment is clearly protected by the 1st.
Also, it could be argued that the act of keeping and bearing arms is also a form of speech, since free speech is not limited to verbal expressions, but includes more concrete expressions, such as the clothes we wear, art, business signage, etc.
I personally DO consider my firearms posession and use as a form of expression in support of the Bill of Rights, in addition to the practical benefits.
Since the keeping and bearing of arms by law abiding people is neither intended nor likely to produce or incite imminent lawless action, then current limits on speech don’t seem to be a good argument for similar restraints on firearms.
In general theory (because there has been zero practical application), the second amendment protects all the BOR. However, in reality it is legislation and the courts that protect speech (so far). Never has there been a credible threat of violent revolution should the government violate that “Congress shall make no law…” proviso.
Proclaiming that our guns protect our speech (from a so far unidentifiable threat) will be considered “extreme” by just about everyone…and play into the hands of the anti-gun gang. This does not even contemplate the problem of establishing a “red line” whereupon armed citizens will take to the streets and attempt to arrest government agents for violating free speech rights.
Boy, am I pissed I missed out on this discussion IRT. That said, the following is what I have been saying all along.
There are absolutely no constitutional restrictions upon the free exercise of any enumerated right, NONE.
The only laws which prevent free exercise of any right are those applied against the 2nd. The tools of the 2nd (firearms) are being taken away. The tools of the 1st are words and thoughts; none of which have been taken away.
When will people stop mouthing the false trope about falsely shouting “Fire!” in a crowded theater? It is in fact entirely Constitutional as per Brandenburg v. Ohio.
This guy Bill with his hackneyed “fire” example has certainly j to prove his point, but that was the point all along. It’s called a strawman argument and its unethical.
You take a weak argument and set it up as representative of the entire opposition. Then you knock down that easily knocked down argument, like a man made of straw and ta da! Now you’ve refuted and discredited all of the opposition, for having knocked down only the weakest part of it.
You’re better than that, TTAG.
Except that I think Bill actually meant it when he said it. Additionally, noted constitutional scholar, successful politician, and two term President, Barrack Obama actually made this argument.
“Obama emphasized that he was not setting the country down a path of taking away guns from the populace, pointing to existing restrictions on other Constitutional guarantees — including the illegality of yelling “fire” in a crowded theater affecting the right to freedom of speech.” I didn’t actually watch the video and it isn’t a direct quote from Obama, but Everett Rosenfeld of CNBC definitely did say it.
WARNING: 35 minute autoplay video at the link. https://www.cnbc.com/2016/01/05/obama-announces-gun-control-plans-i-believe-in-the-second-amendment.html
Has anyone ever stepped up in court and argued that the instruction, “shall not be infringed.” applies to BOTH the right of the People to keep and bear arms, and to a well regulated militia, being necessary to the security of a free state?
As the focus of this whole thing, I will say this:
There are certain people you do not want to be able to keep and bear.
How about people who have been adjudicated to be a danger to themselves and others?
Do you really want someone like Adam Lanza to carry?
I will repeat: no right is absolute.
There’s no question about that. The comments here admit that.
The problem, obviously, is just where does the government (federal, state or local) draw the line?
Proceed…
And, if you’re reading my comments, why does the comment section still not work right?
The problem isn’t how to keep such people from possessing, bearing, or using firearms to cause harm; rather, the problem is that such people roam freely among law-abiding society, and no law will compel or constrain such people in carrying out their nefarious purposes.
The answer is not to infringe upon RKBA, but rather, through due process, to separate the violent criminals from free society.
Before he went on his shooting spree, Lanza wasn’t a violent criminal.
Your argument means we must wait until a person adjudicated to be a danger to himself and others must be allowed to carry freely. Good luck with that.
Yes, that’s how liberty in a free society works.
As Thomas Jefferson said: Malo periculosam, libertatem quam quietam servitutem. “I prefer the tumult of liberty over the quiet of servitude.” The entire quote, in context, is apropos to this discussion:
– Thomas Jefferson to James Madison, January 30, 1787
Similarly, as Benjamin Franklin once said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
That’s also why it is immoral to infringe upon the rights of the law-abiding, because it denies us the opportunity and ability to defend ourselves against such people.
What you are ignoring is the gun laws affect ONLY THE LAW ABIDING , the restrictions only affect them. Given the incredibly low number of prosecutions of prohibited persons attempting to buy firearms and failing the NCIS check, the governments ,local and federal, obviously don’t consider it a useful enforcement tool. Gun law violations are usually plea bargained away by prosecutors.
BTW Lanza failed a background check and stole his mother’s guns to carry out his attack.
I don’t have the time or space to give my philosophy on life.
Or even on the 2A.
But the very fact that so many say “You can yell fire in a theater IF</B there’s a fire means otherwise you can’t do it. I apologize for not stating the obvious originally.
So let me put this another way: Yes, your right to keep and bear is absolute, IF your doing so does not put society in general at an unacceptable risk.
If you’re like me (and you’ve seen my other posts), even that can be ripped. Who decides? What’s unacceptable? That’s why we have courts. D I always agree with the courts? Of course not; that why I refer to the Ninth Circus Court of Appeals.
But those who think the 2A is sacrosanct, and means even those who walk among us us who are threats to ourselves and others (and happen to be on unsupervised (ie, forced) meds) should be allowed to keep and bear, are living in a world that just doesn’t work in reality.
You’re mis-stating the argument. To wit: the argument is two-fold:
1. It is an unconstitutional infringement of first amendment-protected rights, as prior restraint, for the state to prevent the utterance from occuring
2. The right to make the utterance does not absolve one of bearing the responsibility for the harm caused by the utterance.
The actual existence of a fire in the theater has exactly zero bearing on the ability of the state to prevent the utterance of, “Fire!”, and on the constitutional protection of the right of one to make that utterance.
Exercise of the right to keep (possess) and bear (carry) arms does not, ever, under any circumstances, put “society in general” at any risk, much less, an unacceptable risk – and more than possession and carrying of a tongue, vocal cords, or a penis puts society in general at risk.
Rather, it is the use of the firearm (to shoot someone when unjustified), the vocal cords, the tongue (to invoke panic, incite a riot, or slander), or the penis (to commit rape) to cause harm that presents a risk to society.
You’re not only taking a dump on the constitutionally protected right to keep and bear arms, you’re also seemingly willing to take a dump on the constitutionally protected right of due process, and the presumption of innocence. Perhaps you would also be willing to throw the constitutionally protected rights against unreasonable search and seizure out the window, too?
Do tell, what actions could the government take, that would prevent such threats to society, that does not likewise so grossly infringe upon the freedoms of the law-abiding as to constitute tyranny?
Name the law, and explain how it would achieve a stated, compelling government interest. No existing gun control law can even meet that burden.
” It is an unconstitutional infringement of first amendment-protected rights, as prior restraint, for the state to prevent the utterance from occuring”
And yet, such laws (and they are legion) are not being declared unconstitutional.
I’m not just talking about the 2A, but also about, for example, speech. It’s illegal to yell fire in a crowded theater if there’s no fire. If that’s not prior restraint, I’d like to know what you think it is. Same for libel and slander.
If not by laws, how is the state to keep these things from being done? Laws are it. Laws are prior restraint.
“In First Amendment law, a prior restraint is government action that prohibits speech or other expression before it can take place. There are two common forms of prior restraints. The first is a statute or regulation that requires a speaker to acquire a permit or license before speaking, and the second is a judicial injunction that prohibits certain speech. Both types of prior restraint are strongly disfavored, and, with some exceptions, generally unconstitutional.” (https://www.law[dot]cornell.edu/wex/prior_restraint)
So too, we have law that makes it illegal for me to buy a machine gun made in the year 2000.. That’s prior restraint.
There is no way for the government to physically restrain my (or you) from making that purchase, but they restrain me from doing so prior to my doing it by making it illegal to do so.
I’m no legal eagle, but what you said above is wrong. Prior restraint is done, and is legal.
Yeah… that’s not prior restraint. The utterance is not prohibited. The utterance must take place, and harm occur as a result, before the state may take action against the utterer.
A law that penalizes the harm caused by an exercise of free expression is not prior restraint, because to enact the penalty, the expression must occur.
Prior restraint, by definition, restrains the act from occuring in the first place.
To be penalized for slander, one must utter the slanderous speech. To be penalized for inciting a panic through speech, one must first incite panic through speech.
IANAL. Perhaps one of the resident lawyers could explain it more clearly.
Is not easy to explain it clearly because it really is just like any other law, but the courts don’t talk about it like it is. The only difference is that the courts won’t enjoin a party from acting (the act being an expression under the 1A) when they normally would enjoin a party from acting. And then sometimes they do enjoin a party from acting.
For example, if you, Chip, are trespassing on my property repeatedly, the court will likely grant me an injunction against you. However, if you are repeatedly slandering me, the court is less likely from enjoining you from slandering me because of the 1A. The slander is just as illegal as the trespass, but because of the 1A, there is a higher bar to get an injunction.
This is all about court actions and not legislation. I honestly can’t think of a good example for legislation.
I believe that most anti gun people generally fall into 2 categories, subjects wanting to be controlled and control freaks/would be dictators. They are bound by their need for each other to feel that they are in their rightful place in society, subjects and masters. They believe everyone should be one or the other and fear and distrust anyone that cherishes freedom and independence.
There’s more than a few ardent 2A supporters, or alleged supporters anyway, that use that exact argument against other individual rights. Have seen it on this forum too many times to remember.
You should have to pay a $200 tax for the privilege of whispering.
i don’t really see the point in this article other than to cause in-fighting. We don’t need any more of that than we already have.
Here’s another thought…
If the 2A is absolute (doesn’t just apply to the law-abiding – it doesn’t say that, right?), then any prisoner in prison has the right to be armed.
That’s what we need – the likes of Charles Manson with a .45 in prison.
My point remains, unless you think that is right.
All of your arguments about the 1A’s freedom of speech fail because you all bring up ways in which the 1A is abridged in laws that you agree with, whether by prior restraint or by prosecution after the fact.
Unless you agree with arming everyone, no matter whether violent, in prison, or violently insane, then you agree with me in that the 2A right to keep and bear is not absolute.
False premise. The free exercise of rights only applies to free men. The liberty to exercise rights freely can be forfeited through using that liberty to cause harm.
The concept of due process, and derivative principles such as the presumption of innocence, the right to a trial by a jury of ones peers, etc., imply that the People have enumerated authority to the state to impose limitations on the exercise of rights for such people.
The Declaration of Independence, the founding document of our Republic, says in part: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…
The very role of government is to secure the exercise of Rights. That role implies that the government is empowered to prevent abuse of those Rights that result in the infringement of the exercise of Rights of others.
Prosecution after the fact is the correct approach: the state dealing with an actual harm that has occurred. That is the proper role of government.
I agree with every free person having the liberty to exercise all natural rights. I believe that, once a person has completed a sentence – including incarceration and probation – all the rights attendant to a free person should be fully restored. If that person has demonstrated himself to be incapable of handling that liberty without causing harm, then that person should never be released back upon free society.
“The free exercise of rights only applies to free men. ”
I do not find that phrase anywhere in my copy of the constitution.
Amendments control, not the document being amended.
It is only the right of “the people” that is absolute. The question is then, “who are the people?” Chip’s answer is “free men.” Anyone who, by due process of law, is currently under state supervision is not a free man, and therefore, not part of the people.
The only friction between that interpretation and current law regarding the rest of the Constitution is the right of the people “to petition the government for a redress of grievances.” The rest of the things listed as the right of the people, are rights people locked up, on probation, and/or on parole don’t have.
“It is only the right of “the people” that is absolute. The question is then, “who are the people?””
Simply saying the right is absolute in no way makes it absolute. Your question, then, is moot.
Starting from a contested point, and then going forward is a neat trick, but it won’t fly.
“The rest of the things listed as the right of the people, are rights people locked up, on probation, and/or on parole don’t have.”
Really? While there are certainly restriction on their rights, their rights are not totally abrogated.
Amendments 4, 6 and 8 are of particular interest to people you claim aren’t part of “the people.”
There is nothing in the constitution that says the 2A isn’t a right of “the people,” just as there is nothing to say that “the people” doesn’t include those whom you say it doesn’t include.
In fact, if I read it correctly, it specifically says the right to keep and bear belongs to “the people.”
The 6A and 8A don’t mention the people. The 6A is the right of “the accused,” not the people. If you haven’t been charged with a crime, you don’t have the right to a trial and compulsory process. The 8A is broader than any right granted to a specific group. It simply states that specific things shall not be done. It is obviously not absolute. It doesn’t say “bail shall not be required, nor fines imposed, nor punishments inflicted.” The 4A only protects against “unreasonable searches and seizures.” In practice, no one on parole, on probation, or in confinement has 4A rights.
In short, people locked up, on probation, and/or on parole no longer have 4A rights and the 6 and 8A don’t mention the people.
The question of who are the people remains. Are they every person, every lawful resident, every citizen, every citizen who hasn’t been deprived of a right by due process, or, as Ed Asner would have us believe, the militia.
Where do you find “due process” in the constitution? In the amendments? No.
The constitution was/is the base document. Formal amendments alter the base document, changing the original (not the other way round). Thus, if the base document states the Congress has authority to regulate interstate commerce, and an amendment to the constitution states a specific exception/exemption to that authority, the amendment, not the constitution is the controlling authority.
If the constitution states you can be deprived of liberty when “due process” (whatever the government says that means) is applied, and an amendment states “Shall not be infringed”, then “due process” is itself limited to circumstances other than those identified in the constitutional amendment.
It is a senseless document that creates a “Do Loop” wherein “due process” is allowed to limit individual liberty, but an amendment provides and exception to “due process”, but the “due process” of the original document is invoked to override the amendment.
“No person shall … be deprived of life, liberty, or property, without due process of law.” That’s definitely in the Constitution. In fact, it is in the Constitution twice (the second time it’s worded differently and only applies to the States). Both times it is in there, it is after the 2A.
The “due process” implications are not amendments to amendments. If, in time and physical location, the “due process” illuminations alter any of the preceding amendments, the language must clearly state which amendment, and which provision of the amendment. “Repeal” by “extended reasoning” is not a repeal.
“Shall not be infringed” remains an “absolute” statement, declaration, law, proviso, UNLESS and UNTIL a subsequent amendment specifically repeals the universal, “absolute” characteristic of a separate, earlier (or all subsequent) amendment.
“If, in time and physical location, the “due process” illuminations alter any of the preceding amendments, the language must clearly state which amendment, and which provision of the amendment.” – Says you.
Not being a lawyer, I rather expect laws to be followed, not parsed for what “…the meaning of ‘is’ is.”
On the other hand, I am one who knows, recognizes and argues that no “right”, no matter the academic chattering, is actually “absolute”. But I am an “absolutist” about 2A, in theory, and academically speaking.
Being a lawyer, I know that words that are perfectly clear before any facts are involved, can become very murky when facts are introduced.
The people have a protection of the right. Peoples is a word that isn’t a nonsense word. Therefore “the people” does not equal “all people.” Therefore, “the people” must be defined to know who the protection applies to. The right is “to keep and bear arms.” The protection is that it “shall not be infringed.” And there is even room to debate what “shall not be infringed” means. Does it mean that arms must be tax exempt? Or does it mean that a general sales tax isn’t an infringement?
The courts are probably about 100 years away from any of the questions most of us disagree about, so most of this debate is as practical as debating how many angels can dance on the head of a pin.
For the sake of argument, I will concede that incarcerated persons have the right to possess any firearms legally available to them inside the prison.
Of course, the prison bears no responsibility to make firearms available inside the prison.
One more time we agree.
“False premise. The free exercise of rights only applies to free men. ”
Please quote the part of the constitution that says that.
If the 2A is absolute, then it applies to prisoners. Either that, or it’s not absolute.
The more you find ways to say, “Yes, but…” the more you admit the 2A is not absolute.
Where did I say anything about the constitution?
The constitution does not define rights. It merely acknowledges their existence, and defines the protections on those rights, and restrictions on the state to infringe upon those rights, imposed upon the state by the people.
Rights are indeed absolute. Government exists to protect against abuse of and infringement upon the exercise of those rights.
An incarcerated person still has all rights. They are merely held in guardianship by the state, because, through due process, a person has forfeited the free exercise of those rights, by causing harm to another.
“Due process” is whatever the state says it is.
If a “right” is absolute, so is the exercise of it. There is no room in “absolute” for something called “guardianship by the state”.
No room for guardianship of rights? Do you not have children?
Incarceration of lawbreakers by the state is analogous to a parent holding a child’s rights in guardianship.
“No room for guardianship of rights? Do you not have children?”
A child (or mentally incompetent adult) does not have an enumerated “absolute” right to a guardian.
Effectively, none of our “rights” are absolute, everywhere, all the time. We just look and sound childish to keep shouting that they are. An “absolute” right that cannot be exercised without a coercive response by government is not “absolute” in any manner that matters in our day-to-day living.
A thing is, or it isn’t. It cannot be both, simultaneously (Heisenberg not considered).
“An incarcerated person still has all rights. They are merely held in guardianship by the state, because, through due process, a person has forfeited the free exercise of those rights, by causing harm to another.”
The amount of struggling to make the 2A absolute is amusing to watch.
What part of “shall not be infringed” am I missing?
Like I have said, every method used to justify making the 2A not absolute only serves to say it’s not absolute.
They still have the right, but they can’t exercise it? Then, quite simply, they don’t have the right. Therefore, the 2A is not absolute.
Please don’t get me wrong. If you’ve followed my posts here on TTAG, you will see that I am a strong believer in the 2A. But it’s not absolute.
“Absolute”
https://www.merriam-webster.com/dictionary/absolute
https://legal-dictionary.thefreedictionary.com/absolute
https://en.oxforddictionaries.com/definition/absolute
Words have meaning, or they don’t. We are not morally permitted to make-up our own definition to suite our longings, desires, goals, intentions, actions.
Most of the rights in the BoR are explicitly not absolute. The 2A is the only right that doesn’t come with explicit limitations. The 1A’s explicit limitation is that it only restricts Congressional legislation. Admittedly that’s not much of a limitation when Congress is supposed to be the only one making laws.
I don’t really disagree with your premise/conclusion that no right is absolute. Unless they want a lifetime of disappointment, people need to realize that’s the way things are, have been, and (almost certainly) always will be.
My only point against your argument (which seems more to be a call for debate than an argument) is that “fire in a crowded theater” is a terrible example because 1) it is from a case that was almost immediately walked back from, and 2) it’s a bad analogy (for the people arguing for restrictions on the 2A). If that was the standard, then probably no gun law would survive scrutiny.
Very well written article; thank you.
Comments are closed.