On April 8th, President Joe Biden gave a speech to announce several executive orders on guns as well as to promote future legislation. During this speech he said, “no amendment to the Constitution is absolute; you can’t yell fire in a crowded theater.” In a sense, he is correct; none of the amendments in the Constitution are absolute. Free speech does not protect inciting riots, free religion does not protect sacrificing people, requiring a warrant to search a home does not apply to emergencies. There are plenty of restrictions on guns that already exist and have been upheld in court.
The problem with this argument is just because a right is not unlimited, that doesn’t mean the right doesn’t matter at all. For example, the tired cliché “you can’t yell fire in a crowded theater” is from the Supreme Court case Schenck v United States (1919) which was not about yelling fire, rather it was about encouraging people to resist the draft during World War I. This case was later overturned by Brandenburg v Ohio and established that for speech to be outside the scope of the First Amendment, the speech must be likely to promote imminent lawless action, with “likely” and “imminent” being the key words. You can encourage people to resist the draft, you can encourage genocide, you cannot incite a riot. The United States has more freedom of speech than any other country in the world, and it is because exceptions to free speech are very few and far between. Rights matter.
In 2018, two people were driving down Interstate 94 near Jamestown, N.D. A sheriff pulled them over because they were driving too carefully; it was suspicious they were driving 2 mph below the speed limit. They had 500 pounds of marijuana in the car and the judge threw out the case because the sheriff violated their Fourth Amendment right against searches and seizures. The sheriff had no legitimate reason to pull over the car. Rights matter.
Rights not being absolute is no excuse to piss on the Constitution and pass whatever law you think might make the country safer.
Restrictions on guns fall into three categories: who can own guns, where people can carry guns, and what types of guns people can own.
The Supreme Court in DC v Heller conceded that the Second Amendment was not absolute and explicitly did not address the first two categories, but they did talk about what types of guns people can own. At the bare minimum, an individual (unconnected to any militia) has a right to own a basic pistol. The court also shut down the argument that the right only applied to 18th century muskets; they called it frivolous. The types of guns that are protected are those that are in common use. For certain guns to be outside the scope of the Second Amendment, they must be both dangerous (meaning relative to other guns, not in general) and unusual. The AR-15 is the best-selling rifle platform in the country; half of all rifles sold today are AR variants; they are not unusual. Furthermore, ARs are not substantially more dangerous than other guns. They fire a weak varmint round (granted more powerful than pistols) at the same rate of fire as most other guns: 1 shot per trigger pull.
They are not military weapons, they are not machine guns, they are not “designed to kill as many people as possible.” The only reason people single out the AR-15 for banning is because it looks menacing. My evidence of this claim is that proposed assault weapon bans target menacing-looking cosmetic features, not the mechanical function of guns.
Tony Bender wrote a letter “Can we talk about guns?” and he repeated the same arguments that just because rights aren’t unlimited, everything is fair game. His very condescending argument is just more of the same bad-faith drivel that gun owners are used to listening to while our rights are chipped away. Maybe if he stopped straw-manning people would talk to him. It’s my experience that gun owners love talking about guns when they’re not being insulted.
William Smith lives in Fargo.
This column does not necessarily reflect the opinion of The Forum's editorial board nor Forum ownership.