The 1st Amendment is an absolute right.


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Jeff
March 31, 2007, 12:05 AM
I've seen some remarks made recently in several threads, mostly quotes from anti-gunners, declaring that even the 1st Amendment isn't an absolute right, so therefore the 2nd Amendment shouldn't be either.

There's a problem with this statement. The 1st Amendment IS an absolute right, in that there are no regulations on who can use their tongues, or where they can use them, providing they have a Constitutional or legal right to gather at that location.

When antis use this argument to justify restrictions on the 2nd Amendment, the logic is greatly flawed. There is NO analogy. Gun control advocates seek to disarm law-abiding citizens, thereby not allowing them to own or operate certain firearms. Restrictions on free speech only occur after a statement has been issued, and harm has been found to result from such speech.

Therefore, the analogy would be, and rightfully so, Guns can be confiscated when they are misused, such as speech can be misused with penalty resulting.

But gun grabbers want prior restraint, not allowing people to use their firearms responsibly.

Part of the fallacy is based on the misconception that it is illegal to yell "Fire" in a crowded movie theater. It is not illegal. It is only illegal with casualty or damage resulting.

Even if such a declaration-- with no harm resulting--were illegal, the means that allowed you to make such a declaration was never banned or regulated. Movie ushers do not hand out gags when you enter the theater.

I believe the appropriate analogy was fully realized with the following quote: "Taking away my gun because I might shoot someone is like cutting out my tongue because I might yell Fire in a crowded movie theater." (attributed to Peter Venetoklis)

American citizens are given FULL freedom of speech, and are allowed to exercise their right as they so choose. But if they abuse the right by using it to say harmful or even merely offensive statements, they are held liable by the judicial system, the civil court, or, at the very least, the contempt of their peers.

These courses of action are not analagous to the whims of gun grabbers who wish to infringe our 2nd Amendment rights by disallowing us the choice of using our guns responsibly or otherwise. Of course, 99.99% of us choose to use them responsibly.

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glockman19
March 31, 2007, 12:07 AM
I agree. You're preaching to the chior.

Now we just need to convince those who think otherwise.

Jeff
March 31, 2007, 12:14 AM
I agree. You're preaching to the chior.

I'm not sure I am preaching to the choir. I actually posted this because I've read some THR members drawing these references. I think there are certain fine points in this argument that need to be emphatically stated.

Remander
March 31, 2007, 12:32 AM
When speaking of the breadth of the Bill of Rights, remember that they were originally written to limit only the power of the federal government.

It is only through what many would consider liberal (not supported by clear text in the Constitution) holdings by the Supreme Court that many of the Bill's guarantees protect citizens against state governments.

Those darned liberals have held that the First Amendment (through the incorporation doctrine) actually limits the power of the state governments to suppress speech. Grrrrr. The Second Amendment has not been so applied as of yet by the Supreme Court.

So, slightly off topic, remember that you have to get a bit of a liberal streak to apply the Second Amendment to the states. True strict constructionists would say, "Show me where the Constitution says the 2nd Amendment applies to states." You say, "Well, incorporation by the Due Process Clause ...." They say, "That's a heckuva subjective way of doing things. Show me clear language. That sounds like liberal blather, like that penumbra stuff and the alleged right to privacy. Where does it say that?"

So, whether it is an absolute right or not, it won't apply to the states without a good liberal application through the incorporation doctrine. :)

FMJMIKE
March 31, 2007, 08:51 AM
We have rights....any rights... only as long as we are willing to fight for them !!!

nibb
March 31, 2007, 09:58 AM
Of course it is. We have the right to Free Speech. Not like the media today wants to control all opinions. We have the right to speak, and what the hell we want too !!!

Baba Louie
March 31, 2007, 10:18 AM
They are all absolute rights... until the .gov and the powers that be decide and rule differently. Witness President Jackson, SCOTUS Justice Marshall, the Cherokee and the Trail of Tears in years gone by.

You want "Absolute"?

Death and Taxes.

Everything else is temporal. Or so history shows.

ChristopherG
March 31, 2007, 10:36 AM
The 1st Amendment IS an absolute right, in that there are no regulations on who can use their tongues, or where they can use them, providing they have a Constitutional or legal right to gather at that location.

Now, please understand I'm always here to learn, and I don't consider myself an expert in anything we're talking about, and I stand ready for correction: but it seems to me this statement in materially incorrect.

At least in my state:
It is illegal to utter a variety of kinds of threats, whether or not they produce any result.
It is illegal to speak/communicate with a minor for 'immoral purposes', whether or not those purposes are achieved.
It is illegal to verbally provoke someone into physical confrontation, even if the physical confrontation does not take place.
It is illegal to conspire (i.e., speak with another person in an encouraging or facilitating manner) about the intent to commit a specific crime, though the conspirant does nothing but talk, and though the crime never takes place.
It is illegal to make false or misleading statements to a variety of state servants and representatives and in a variety of contexts.
There are, I think, numerous other examples of restrictions on the freedom of speech, and that's just my state's criminal laws.

Are these not examples of restrictions on the freedom of speech? If so, and if these restrictions are constitutional and defensible, the analogy would seem to support the .gov's right to place restrictions on the rights protected by the second amendment, which include not only the bearing but also the keeping of arms.

I'm genuinely open to correction; have I misunderstood the argument?

unixguy
March 31, 2007, 11:00 AM
Jeff, I think you're focusing on the "prior restraint" part of the argument, and seem to have forgotten that if the 1st amendment meant that there aren't any limits, then people could use that interpretation of the 1st Amendment protection to say anything at all no matter what damage results (and use that interpretation as protection from the legal repercussions).

IANAL.

I have always thought that the 1s A. had to do with the expression of ideas (beliefs, etc.), rather than every utterance that happens to be verbalized or everything that shows up in print. In my opinion, the First A. has been interpreted more broadly than it was intended (and I have no documentation to back this up), but I'm not sure that is a bad thing-- I think that all of the amendments should be interpreted to be as "Limiting gov'mt powers as much as possible."

Don't ask me how anybody could hope to try and codify what would fall under my interpretation of the 1st... "I'll recognize it when I see it." :)

Having said all that, I agree with your conclusion that just as people are allowed to exercise the power of speech until they do something that harms another, restricting 2nd A. rights because of the damage that someone _might_ do is stupid.

joab
March 31, 2007, 11:33 AM
I was involved in a discussion such as the OP describes
Some used the idea that rights are not absolute to justify requiring tests for CCW as a way of getting a universal carry card. Part of that argument was the apparently constitutionality of the apparent restrictions on arms ownership and free speech

No one right is greater than another and no one's right is greater than another's

Are these not examples of restrictions on the freedom of speech?No they are not. They are examples of one's freedom of speech not being greater than another's right to life liberty and the pursuit of happiness
It is illegal to utter a variety of kinds of threats, whether or not they produce any result.Our laws have determined that threatening someone is a violation of their rights so you would not be arrested for speaking you are arrested for threatening .
Your community has determined that verbal threats areas wrong as physical intimidation
It is illegal to speak/communicate with a minor for 'immoral purposes', whether or not those purposes are achieved.Our society has deemed it illegal to consort with minor for carnal purposes.
Your community has determined that in order to combat this problem speaking such desires is as much a violation of the child's rights as physically expressing them, I imagine that your community has the same restriction on groping your self in a lewd manner in front of a child
It is illegal to verbally provoke someone into physical confrontation, even if the physical confrontation does not take place.Same as threats. Your community has determined that inciting a duel is illegal, I imagine that they have the same rules against physically trying to instigate a fight whether any words are spoken or even if any contact is made
It is illegal to conspire (i.e., speak with another person in an encouraging or facilitating manner) about the intent to commit a specific crime, though the conspirant does nothing but talk, and though the crime never takes place.Conspiracy to violate the rights of others whether spoken or acted out in mime has been determined to be a crime
It is illegal to make false or misleading statements to a variety of state servants and representatives and in a variety of contexts.Lying to impede the investigation of a crime impedes the rights of others. The same law that makes it illegal to lie to authorities give you the right to not speak at all.

In short these crimes are not based on illegal speech but in the illegal violation of the rights of others.

Those of us that believe that gun ownership is an absolute right also believe that that right can not overtly or consciously violate the rights of others.
We don't have the right not to be offended but we do have the right not to live under the threat of our rights being violated by another

antsi
March 31, 2007, 11:33 AM
I partially agree with Jeff and partially agree with ChristopherG.

Libel, slander, sexual propositions to children, etc... these are all examples where someone is using freedom of expression in an illegal way that is harmful to others, and they can rightly be punished for it. The analogue for the second ammendment would be using one's firearms in an illegal way that harms someone else; clearly one can be punished for that. I don't think this is really controversial.

Gun control advocates want to restrict our right to keep and bear arms because of harmful acts we might do. This is a different situation: it would be analagous to shutting down a newspaper or a website because they might libel someone. Again, at least on THR, I don't think this is really controversial: most everyone agrees it's unconstitutional to restrict someone's rights based on something they might do.

There are some areas that are less clear. One of the ones that's been argued here recently is when employers restrict their employees' gun rights - for example, not allowing carry on company property. A free speech analogy might be the right to make a speech favoring white supremacy. You certainly have the right to make such a speech, but if you make such a speech on the job, directed at your employer's African-American customers, then they might very reasonably fire you from your job. In this sense, I would say, employers have some limited ability to restrict your exercising your rights on the job.

I guess my take here is that there are different dimensions of "absoluteness:"

Absolute, in the sense of exercising the right in such a way as to cause unjustified harm to other people? No, I don't think any rights are absolute in that sense.

Absolute, in that some kind of harm to others has to be demonstrated if the right is going to be restricted? Yes, I think all the constitutional rights are absolute in that sense.

Where it gets tricky is when one person's legitimate rights conflict with another person's legitimate rights. Then you have to make a judgement about whose rights are more threatened in a given situation.

cheygriz
March 31, 2007, 10:22 PM
No right is absolute. The First Amendment doesn't, and shouldn't give you the right to stand up in a crowded theatre and yell FIRE! It doesn't give you the right to reveal military secrets on radio or TV.

The 2A doesn't and shouldn't give you the right to possess nuclear material or stinger missiles.


"Rights" are only as absolute as letting you do whatever you want to, but only so long as no other person is harmed by your exercise of those rights.

In other words, "your rights end where my nose begins!":D

joab
April 1, 2007, 01:23 PM
The 2A doesn't and shouldn't give you the right to possess nuclear material or stinger missiles.As with the first amendment the second does not give you the right to cause a threat to innocents
Nuclear material necessary to build a nuclear bomb would negatively impact not only on the direct health and safety of your neighbors but quite possibly their descendants

The right to ownership implies the right to use you cannot possibly use a nuke without impacting on the rights of others

So banning these weapons in no way infringes on your right to bear arms

glockman19
April 1, 2007, 01:58 PM
The only absolute right is the right to: Life, Liberty & the Pursuit of Happiness.

TallPine
April 1, 2007, 04:21 PM
I don't understand what is so complicated about all of this .... :confused:

The 2A protects our "right to keep and bear arms" - not the right to go shooting our guns off on Main Street thereby endangering innocent citizens.

The so called restrictions on free speech are analogous to the latter, not the former.

cheygriz
April 1, 2007, 06:00 PM
The only absolute right is the right to: Life, Liberty & the Pursuit of Happiness.


Actually, I prefer the kinda "updated" version of this.

"The right to life, liberty, and the pursuit of all who threaten it!":p

razorburn
April 2, 2007, 03:09 AM
No they are not. They are examples of one's freedom of speech not being greater than another's right to life liberty and the pursuit of happiness

All forms of speech involve communication with another person, which could potentially impede on their happiness. Unless you interpret the 1st amendment to be a right to speak to yourself, Chris is right. The 1st isn't an absolute right either. There are times and places where you cannot say certain things without legal repercussion.

Frog48
April 2, 2007, 03:15 AM
We have rights....any rights... only as long as we are willing to fight for them !!!

Bingo. Without an armed citizenry, all other rights mean nothing, and will be quickly lost.

bogie
April 2, 2007, 03:19 AM
Freedom of speech is only a right as long as the guys with the guns _say_ it is a right.

TX1911fan
April 2, 2007, 10:36 AM
Jeff, excellent analysis. It helps the rest of us to have things put concisely. Those of you talking about certain types of speech or utterances being made illegal are missing the point. Yes, they are illegal to DO, but the means of committing the illegal act are not restricted until AFTER you commit the illegal act. An example would be that because driving 90 MPH is illegal, and because I might do it, the government bans my car, thereby preventing me from driving 90MPH.

Murder, armed robbery, threats with a gun, etc. are all illegal, but the anti-gunners want to take away the means to break the law BEFORE anyone actually does so, and in doing so they take away the rights of all those who do not intend to, and never would, break that law. A comparison would be to invent a drug that the government would force everyone to take that elimitated the word fire or any derivative from our vocabulary. That way, no one could ever yell "fire" in a crowded theater.

The prior restraint argument is exceptionally valid. Thanks again.

shield20
April 2, 2007, 10:50 AM
All of the Rights protected by the BOR were meant to be absolute - otherwise Madison wouldn't have articulated them. They are also allowed to be disabled via due process - only.

To think that the founders were so stupid that they would list a VERY select enumeration of absolute rights, and then expect them to only limit the federal govt is silly - THEY KNEW what is meant by the "supreme law of the land" - they wrote it! They have perfect reasons to ensure those rights were not infringed upon by anyone or ANY body - States and locaitites included - one is that the people demanded it! Our forefathers requested and approved absolute protection of their rights, and so ours.

There is NO compelling reason to infringe on the RKBA - to do so limits the primary institution REQUIRED by the Constitution to ensure the freedom of the people, the States, and the United States - the Militias.

Yes, passing laws saying acts performed with arms that impact other people's rights to life and liberty are fine, but to infringe on the Right itself because a person MIGHT conduct an evil act is NOT constitutional. ANY legislative or executive act which limits in ANY way, at ANY time, the capability of the people to fulfill their duty, and to enjoy their unalienable Right, is unlawful.

Jeff
April 2, 2007, 06:06 PM
Good responses, all.

And especially good observations from the ones who understand my point: joab, Tallpine, and TX1911fan.

longrifleman
April 2, 2007, 06:23 PM
" The First Amendment doesn't, and shouldn't give you the right to stand up in a crowded theatre and yell FIRE!"

Pet peeve time. We really need to find another analogy. We not only have a right, but a duty, to yell fire! if there is a fire. We don't have the right to cause injury to others by lying about the fire.

It's the lies that aren't protected, no matter what the situation.

sb350hp
April 2, 2007, 07:08 PM
So long as the idiots in this country can burn a US flag, deficate on our soldiers, abort babies, and cross into this country illegally and be entitled to our medical syste, foods stamps and such:cuss: . I will never give up my guns regardless if they are legal or not!

Zundfolge
April 2, 2007, 07:12 PM
Most who oppose 2A rights don't really believe in 1A rights either, regardless of what they say.


In fact I'd go so far as to say the reason some oppose our 2A rights is because the 2A stands in their way in their quest to rid us of that pesky 1A (and 3A and 4A and ... well you get the idea).


Pet peeve time. We really need to find another analogy. We not only have a right, but a duty, to yell fire! if there is a fire. We don't have the right to cause injury to others by lying about the fire.
Excellent point. So the real correlation between that cliche and the 2A would be that under the 2A you don't have a right to stand up in a theater and start randomly shooting people.

In other words, the 1A doesn't affirm the right to misuse free speech, just like the 2A doesn't affirm the right to misuse arms.

Jim K
April 2, 2007, 07:33 PM
Sometimes the right to free speech, the right to a free press, and the right to keep and bear arms are threatened at the same time.

When the current handgun ban (bans sale of guns not on the "approved" list) was enacted in MD, the state AG (Curran) determined that it was against the law to advertise guns that could not be sold in the state.

So he sent the State Police to raid newsstands and super markets and seize copies of gun magazines that had articles or advertising on "unapproved" guns. That didn't last long, but there were some raids and some magazines and other publications were seized. Most were later returned or the stores reimbursed for them, but it proves that people who do not respect one right often do not respect any of them.

Incidentally, some of the anti-gun newspapers saw nothing wrong with the police confiscating Guns and Ammo, equating gun magazines with pornography and "Nazi" literature. They are so blind and insane on the gun control issue that they don't even see the danger to themselves of an out-of-control anti-gun administration.

Jim

Jeff
April 2, 2007, 10:30 PM
Excellent point. So the real correlation between that cliche and the 2A would be that under the 2A you don't have a right to stand up in a theater and start randomly shooting people.

In other words, the 1A doesn't affirm the right to misuse free speech, just like the 2A doesn't affirm the right to misuse arms.

Ummm, Zundfolge, that was the point of my original post, and the point of some others who followed.

TX1911fan
April 2, 2007, 11:15 PM
longrifleman, I agree with your pet peeve. I think it is understood with the analogy that you can't yell fire unless there really is a fire. In other words, you can't use your "free speech" to create an unnecessarily dangerous situation. That is why Jeff's original point is so good. We are still all allowed to say fire in virtually every other circumstance, including in a movie theater when there really is a fire. We just can't misuse the word to someone else's detriment. Same should go for guns.

I've been thinking about this for a response to someone who holds that we should have responsible gun laws. Here is how I would expect the conversation to go:

Me: What responsible laws are you talking about?
Them: Like licensing and registration.
Me: that's because a gun is so dangerous that it should be licensed and its owner registered?
Them: exactly
Me: would you accept the same kind of reasonable restrictions on Free Speech?
Them: like what?
Me: well, the classic example of abuse of free speech is yelling "fire" in a movie theater, right?
Them: yes.
Me: and that's dangerous, right, that's why it is not protected speech?
Them: sure
Me: so what if we make everyone who wants to say the word fire have to register and get a license to use that word first. That way, they can get training on when it is appropriate to use it, how best to say it, etc. so they don't cause any problems. And we could punish someone for using that word who has not been registered. I mean, we require people to get a license and registration to drive a car, right. Why not a dangerous word like fire. And someone who is not licensed and registered would be punished if they used the word, whether it was innocent or not, even if it didn't harm anyone.
Them: uhhh
Me: now, keep in mind that if there really was a fire in the theater, you couldn't tell anyone because you aren't licensed or registered to use that word. Generally, only wealthier people would be, because we would make the fees so high, and make the course you have to attend so onerous, that only people with money and time would get it. But that's ok, because it is such a dangerous word that we can accept that someone might get hurt accidentally. I mean, think of the children who could be injured if someone used that word the wrong way! All those innocent little ones being trampled because some idiot shouts fire, whether there is one or not. I'd rather burn to death than use that word anyway, even the thought of it makes me gag. I can't even write it on a piece of paper it is so heinous.

I would expect this would be a good time to launch into the explanation that the overwhelming majority of gun owners are law abiding, good, fine, upstanding citizens who have their rights trampled constantly because a small minority choose to misuse a contitutionally guaranteed right.

Sorry for the long post. Stream of conciousness kind of thing. You've unleashed a monster, Jeff.

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