The First And Second Amendments Compared

The Second Amendment states: “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.”

Supporters of gun rights quote the Second Amendment and act as if it says that there can be no law restricting the right to own a weapon. They read the phrase “shall not be infringed” as an absolute.
This sounds nice, but the Supreme Court, in District of Columbia v. Heller, 554 U.S. 570 (2008), noted that even the Second Amendment is subject to reasonable regulation. “Like most rights, the right secured by the Second Amendment is not unlimited.” The court noted that nothing “in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places … or laws imposing conditions and qualifications on the commercial sale of arms.”

Some supporters of gun rights act surprised at this concept. Do they believe that the rights protected under the Constitution are not subject to any restriction? Do they pay attention? All rights are subject to some level of restriction.

The best comparison, in my view, with restrictions of supposedly unrestrictable Constitutional rights, involves the First Amendment right to free speech. Were you to ask most people, I believe most people would say that this means that citizens have the right to say anything they want, without government restriction. But the reality is that there are many restrictions on this right.

The First amendment, in pertinent part, states: “Congress shall make no law … abridging the freedom of speech, or of the press ….”

Despite this fairly firm statement that Congress shall make NO LAW, there are lots of laws restricting the freedom of speech.

Copyright laws restrict the ability to speak freely by limiting a speakers us of other’s words or ideas. Defamation laws limit the ability to speak freely by allowing litigation over the use of certain words or ideas to describe another person. Obscenity laws limit the ability to depict certain things, thus limiting the right and ability to speak freely. There are also innumerable “time, place, and manner” restrictions on the ability to speak at will. Communities have noise ordinances that prevent a person from expressing their political views from a sound truck in a neighborhood in the middle of the night. Generally those are broad noise ordinances that prevent any loud noises in residential areas at night, but the impact is that it limits all forms of speech, even political speech. Communities have ordinances to deal with parades and protests. They can’t be stopped, but the community has a right to manage this activity in order to limit public disruption. And there are also a wide variety of broadcast restrictions on content broadcast over the public airwaves. There are also a whole host of laws regulating speech as action, what Supreme Court Justice Oliver Wendell Holmes referred to as “shouting fire in a crowded theater.” A person can claim they were exercising their right to free speech when they slip a robbery note to a bank teller (it has happened), or provoked a fist fight.

So, the First Amendment says “Congress shall make no law abridging the freedom of speech” but the reality is that Congress has passed lots and lots of laws abridging the freedom of speech. The question is whether those are reasonable restrictions on the right to speak freely. The same question should apply to second Amendment rights. Is the restriction or limitation reasonable?

One could get into a linguistic argument over whether “shall not be infringed” is more or less definite that “make no law abridging.” Is “shall not be infringed” more definite than “make no law abridging”? Perhaps it is, but perhaps it is not. I would argue that “make no law” is more definite because “no” means “no,” while “infringing” is a legal term that implicitly implies that there is behavior that does not infringe. Infringe, by definition, incorporates limitations.

Despite what seems like clear and absolute language it is important to note that throughout American history there have been laws that have restricted the freedom of speech. The First Congress, with a number of framers present, enacted the Bill of Rights, but also passed laws that imposed restrictions on both speech and firearms, so one could argue that, despite the absolutist language, no one took those words to mean absolutely no restrictions. The reality is that, from the beginning, Congress and the courts allowed “reasonable” restrictions of all constitutionally guaranteed rights.

This raises a second argument frequently mentioned by gun right advocates: the slippery slope. Supporters of gun rights say that if Congress limits the right to have assault weapons, the next step will be more restrictions, then more and more, until all our rights are lost.

This sounds like a logical and reasonable argument, but the problem is that it fails the history test. Rights have always ebbed and flowed. Since the nation’s founding there have been periods of increased restriction, and then periods of easing of restrictions. Let’s look briefly at the history of restrictions on the right to free speech under the First Amendment.

The Constitution says that Congress shall make “no law” abridging the freedom of speech. But in the 1790’s Congress passed the Sedition Act, which made it a crime to criticize the government. This was a clear restriction on the right to speak freely. That law was eventually repealed. The law was part of the intense hostility between the Federalists, under President John Adams, and his nemesis Thomas Jefferson and the Jeffersonian Democrats, and when Jefferson won the Presidency in 1800 his allies in Congress overturned the Sedition Act. (See, “What Kind of Nation” by James F. Simon, 2002.) This was only the first of a number of laws directly limiting the right of people to speak freely, and I’m not just talking about the laws set out above. Most of these laws were passed during periods of war or impending national emergency. President Abraham Lincoln imprisoned newspaper editors, in clear violation of the First Amendment. Congress passed a Sedition Law during the First World War, and a number of loyalty oaths and laws during the second Red Scare of the 1950’s. There have also been numerous state laws restricting pornography, and these laws were essentially nationalized when the U.S. Postal Service refused to allow such material in the mails.

According to the slippery slope theory, the slippery slope only runs one way. So once Congress passes these sorts of laws they will only pass more, and eventually – and inevitably – there will be more restrictions.

But guess what? Reality was starkly different. Congress has passed laws, then overturned them. Or more to the point, Congress has passed laws, and in the last fifty years of so the Courts have overturned them. So, if anything the slippery slope, particularly for speech, has gone the other way. Speech has become nearly unconstrained (except for a few reasonable restrictions set out above). Courts shave struck down most restrictions on speech, and now just about anything goes. While there is still no nudity on broadcast television, there is certainly a great deal of sex and vulgarity. In fact I must note the irony that the same people complaining about government restrictions in one area (gun rights) are complaining about the lack of government restrictions in the area of speech and the First Amendment.

Gun restrictions have also ebbed and flowed. There have been various gun restrictions throughout American history. States regulated guns to varying degrees before the Civil War. After the Civil War there was a great deal of concern that the 14th Amendment would force the states (primarily the Southern States) to allow the newly freed slaves to own guns. The most significant national gun restrictions were passed during the Depression. The most significant was the National Firearms Act of 1934, which prevented people from owning fully automatic weapons. This is enacted, in part, because of the crime wave caused during prohibition, and particularly Al Capone’s St Valentine’s Day massacre.

Since then, gun restrictions are often proposed in the immediate aftermath of a visible gun incident, such as the assassination attempt against Ronald Reagan in 1981. The Brady Bill, which took years to pass, was named after former Reagan Press Secretary James Brady, who was grievously injured during the Reagan assassination attempt. Not long after the Brady Bill was signed into law, Congress passed an Assault Weapon Ban. Clinton signed this into law in 1994, but it expired in 2004, and has not been replaced. The simple fact that this law was allowed to expire, shows the fallacy of this slippery slope argument.

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