Imagine the Left Treating Freedom of Speech as It Treats 'Gun Rights'
Since people use words that injure or incite violence, shouldn't Second Amendment infringers be willing to apply their gun control agenda to the First Amendment?
The First Amendment states in part, "Congress shall make no law ... abridging the freedom of speech, or of the press."
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."
The extent of the right expressed "above all other interests" by the Second Amendment was emphatically noted by the U.S. Supreme Court majority in District of Columbia v. Heller (2008) as analogous to the First Amendment:
[The purpose of the Second Amendment is] to secure a well-armed militia[.] ... But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms[.] ... The clause is analogous to the one securing the freedom of speech and of the press. Freedom, not license, is secured; the fair use, not the libelous abuse, is protected." ...
The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people – which Justice Breyer would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
Ever hear the anti-gun crowd trash the First Amendment as they do the Second? "It's outdated and written by white slave-owners." "It's time for commonsense regulations."
Let's apply some progressive "commonsense" gun control proposals to freedom of speech and the press. For example:
- The First Amendment is not an individual right. It applies only to members of a well-regulated militia.
- All speech and methods of communication are prohibited unless they were in "common use" at the time the First Amendment was ratified. These include radio, TV, motion pictures, audio and visual recordings, telephones, telegraph, the internet, blogs, Facebook, Twitter, Snapchat, LinkedIn, Pinterest, Reddit, Google, YouTube, Instagram, etc.
- A universal background check to speak or publish is required, including a mental health exam conducted by a therapist who thinks President Trump is mentally ill. The exam is especially essential for news anchors on CNN and MSNBC.
- As with privately owned guns, speech must be disassembled and unworkable within the District of Columbia. See District of Columbia v. Heller (2008) and Congress, for example.
- A speaker or publisher must show good cause for a license to speak publicly, subject to the discretion of a government bureaucrat.
- A license to speak or publish is subject to a minimum three-day waiting period.
- A speaker or publisher must be at least 21 years of age.
- A national database of registered speakers and publishers shall be created and maintained by the U.S. Department of Justice.
- The media show loophole must be closed.
- Magazines shall be limited to ten words in order to prevent mass casualties of disfavored speech.
- No gun control advocate may shout "fire" in a crowded theater even if the theater is on fire, Schenck v. United States (1918) notwithstanding.
- Speech "directed to inciting or producing imminent gun control regulations and is likely to incite or produce such action" is prohibited, Brandenburg v. Ohio (1969) notwithstanding.
- Soliciting progressive speech in a public college or university is subject to a $5-million security fee and is permissible only within a "safe space" stocked with NRA publications.
- Neither the National Federation of Teachers nor the National Education Association may speak against school personnel carrying a firearm within a public school.
- Notwithstanding New York Times v. Sullivan (1964) and Gertz v. Welch, Inc. (1974), it shall be lawful to slander or libel gun control advocates – e.g., "The ACLU is a terrorist organization."
All in favor of these "commonsense" regulations, let's have a show of hands.
We "bitter clingers" favor Samuel Adams, who treasured the Second Amendment as much as the First.
That the Constitution shall never be construed to authorize Congress to infringe on the just liberty of the press or the rights of conscience; or to prevent "the people" of the United States who are peaceable citizens from keeping their own arms.
Jan LaRue is senior legal analyst with the American Civil Rights Union.