[Vision2020] A little reminder to 2nd Amendment Absolutists

[Nicholas Gier]

Please note that Stone gives away, for the sake of argumet, the
essential phrase "well-regulated" militia, which 250 years ago meant
that most of the arms were locked up in the local armory.

Understanding the Second Amendment
Posted: 01/09/2013 8:05 am  Huffington Post

Geoffrey Stone, U. of Chicago School of Law

Opponents of laws regulating the sale, manufacture and use of guns
fervently invoke the Second Amendment. In their view, the Second
Amendment ("a well-regulated militia being necessary to the security
of a free state, the right of the people to keep and bear arms shall
not be infringed") forbids the government to regulate guns. Period.
End of discussion.

But it is more complicated than that. At the outset, let's put aside
the argument that the "well-regulated militia" clause signficantly
narrows the scope of the Second Amendment. Although most judges and
lawyers endorse that interpretation, the Supreme Court, in its
controversial five-to-four decision in District of Columbia v. Heller,
rejected that understanding of the text.

So, let's consider that matter "settled." Let's assume, then, that the
Second Amendment reads: "The right of the people to keep and bear arms
shall not be infringed." Now, that sure sounds absolute. But it's not
that simple.

Consider, for example, the First Amendment, which provides: "Congress
shall make no law ... abridging the freedom of speech." This also
sounds absolute. But does the First Amendment mean that the government
cannot constitutionally regulate speech?

Justice Oliver Wendell Holmes put that possibility to rest in 1919
with a famous hypothetical. "The most stringent protection of free
speech," he observed, "would not protect a man falsely shouting fire
in a theater and causing a panic." In other words, even though the
text of the First Amendment sounds absolute, it is not.

But how can this be so? Doesn't the text mean what it says? Here's the
catch: Even though it is true that "Congress shall make no law ...
abridging the freedom of speech," we still have to define what we mean
by "the freedom of speech" that Congress may not abridge. The phrase
"the freedom of speech," in other words, is not self-defining. And as
Justice Holmes demonstrated with his hypothetical, it does not cover
an individual who falsely shouts "fire!"in a crowded theater.

But that is only the beginning, for despite the seemingly absolute
language of the First Amendment, the Supreme Court has long-held that
the government may regulate speech in a great many situations. In
appropriate circumstances, for example, a speaker can be punished for
defaming another individual, for making threats, for selling
obscenity, for distributing child pornography, for inciting a murder,
for "leaking" confidential information, for using a loudspeaker at
night in a residential neighborhood, for handing out leaflets on a
public bus, for erecting a too-large billboard, and for using naughty
words on television, to cite just a few of many possible examples.

Thus, although the First Amendment seems absolute in its protection of
"the freedom of speech," the Supreme Court has reasonably recognized
that it does not guarantee us the right to say whatever we please,
whenever we please, wherever we please, in whatever manner we please.
The "freedom of speech" is subject to regulation.

The same is of course true of the Second Amendment. Even if we agree
that the Second Amendment forbids the government to "infringe" the
right to "keep and bear arms," that does not mean that the government
cannot reasonably regulate the manufacture, sale, ownership and
possession of firearms. Indeed, this is precisely what Justice Scalia
said in his opinion for the Court in Heller.

It is time for opponents of gun control to stop mindlessly shouting
"The Second Amendment!!" as if that ends the discussion. It does not.
Just as there is no First Amendment right to falsely yell fire in a
crowded theatre, there is no Second Amendment right to carry an AK-47
there.

And that is only the beginning of what the Second Amendment does not guarantee.