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If Oliver Wendell Holmes is the best you have…

February 3, 2019

you don’t have much. Allow me to explain.

It is my experience that arguments for the ongoing efforts to further restrict the right to keep and bear arms (RKBA) are never new. I get involved in discussions with gun control advocates (GCAs) on a fairly regular basis. If the discussion lasts long enough, then as surely as the sun rises in the east, the other person will make at least one of the following arguments*.

  1. No right is unlimited. There are restrictions on the First Amendment (like not being able to yell “fire” in a crowded theater).
  2. We require licensing, registration and training to drive cars
  3. Guns are made to kill people
  4. You love your guns more than you love your kids
  5. You are an ammosexual

I want, over the course of several posts, to examine each of these. I may periodically add to the above list. If I do, I’ll try to give the additions their own well-deserved treatment. For this posting, though, I will focus on #1.

No right is unlimited.

Really? I am struck speechless by this insightful thunderbolt. Or not.

Look, I agree that no right or liberty is unlimited. The disagreement we have is over what those limitations should be. Here’s the limitation that I am more than willing to accept. As long as what you do brings no harm to me or mine, I don’t care what you do. Likewise, if what I’m doing does not harm you or yours, I will not tolerate your efforts to tell me I can’t do it. What could be more fair than that?

A lot, apparently.

Some people, because of the tendency of a small minority of citizens to use the liberties we all enjoy to harm others, have decided to address that problem by restricting the liberty of the exponentially larger majority of citizens. To put it another way, it is an attempt to control the behavior of the criminal by limiting the liberty of the law-abiding. To put it yet another way, it declares a thing that is, in and of itself, neutral (or even good) to be wrong (malum prohibitum) because some third party might use the neutral or good (but now declared to be wrong) thing to commit an act that is wrong in and of itself (malum in se). This, we are assured, is just.

You will pardon me if I disagree. It is many things, but “just” is not one of them. Overreach? You bet it is. Authoritarian busybodies trying to tell other people what they should be able to do? Absolutely. But just? Not even close.

There are restrictions on the First Amendment (like not being able to yell “fire” in a crowded theater).

Yes, there are. Those restrictions are of particular importance to me because I was largely raised in and around newspapers and print shops. Not only was I raised that way, at one time I was one of three partners who started and ran a newspaper, back when they were much more of a thing than they are now. These days, I’m trying to learn to write well enough to successfully publish books. I have what is definitely a vested interest in the First Amendment, then. Let’s take a look at the things I could not legally do with our newspaper (and that I can’t legally do when I write and publish a book).

  • Libel. This is a form of defamation (making a false statement that harms someone else). It differs from slander in that slander is spoken while libel is written. If I commit a libelous act, I have opened myself up to a lawsuit. “My next door neighbor, Ignatius Reginald Jones IV, is a thief and abuser of virgin sheep” would be libel if I printed it (and if it wasn’t true). FWIW, I don’t have a next door neighbor named Ignatius Reginald Jones IV. I checked.
  • Publishing certain things related to national security could get me in big trouble. My understanding is that one of Tom Clancy’s books earned him a visit from the FBI. They were curious to know where he had gotten his information. He was able to demonstrate that it was all publicly available.

How did I deal with those things (and how will I deal with them in the future)? It’s simple, really. I decided to not commit libel or to publish national security secrets. Like I said, simple.

As for “yelling ‘fire’ in a crowded theater,” if that is your standard, I would encourage you to read up on the case regarding which Oliver Wendell Holmes made that statement (which was actually “falsely yelling fire in a crowded theater”), as well as subsequent cases. The case was Schenk v. United States.

Although there are some things that do not enjoy First Amendment protection, the courts have been pretty firm in rejecting attempts at prior restraint.

In practical terms, it worked out that there were many things I did not have to do when it came to starting and running a newspaper. Among those, I did not have to

  • obtain any sort of newspaper license, nor were there any typesetting or printing press licenses
  • promise to not commit libel
  • promise to not publish classified national security information
  • demonstrate any training or proficiency in or with
    • journalism
    • English grammar
    • business
    • typesetting
    • writing
    • printing press operation
  • justify why I needed or wanted to start a newspaper
  • gain the approval of any federal, state, county or local official before starting the newspaper
  • notify any law enforcement officer or agency of my intent to start a newspaper
  • agree to only publish number of copies per edition, or number of pages, or run number and type of ads
  • register myself or any of the equipment used

As for not being able to yell “fire” when I’m in a crowded theater, I most certainly can do so. Now, if I do so in the absence of a fire and people are injured in and ensuing panic, I might be legally liable. There is not, however, any mechanism in place to prevent me from doing so. I will simply not enjoy any sort of First Amendment protection. I sign no agreement to not use, or to not inappropriately use, the offending word. There is no hypnotist in the lobby to hypnotically alter my vocabulary for the duration of my time in the theater. No one will evaluate me to determine if I am likely to yell “fire!” There is no list of words I am not permitted to use.

I note that as I am writing books (or trying to), and writing here on this blog, the laws are essentially the same.

Laws restricting the right to keep and bear arms are dramatically different. I am unaware of any gun control laws, which if applied to the First Amendment, would not be both widely opposed and arguably overturned by the courts.

And thus, the title of this posting.

*Technically, 4&5 are assertions or accusations, not arguments, but they come up in almost every discussion I have.

From → Uncategorized

  1. OldNFO permalink

    I like to use the Jews in the Attic test on them and watch them flounder!

  2. It’s a good one! Thanks for the link. Sadly, some people are so married to some version of “It Can’t Happen Here” as to be immune to anything one might say.

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