Law Professor Says 2nd Amendment not ‘Absolute’
On January 9, 2013 the Huffington Post ran a column by Geoffrey R. Stone on the Second Amendment. Stone is currently the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School.
In 2008, I wrote an extended paper (Historical Revisionism) on Professor Stone’s misunderstanding of the First Amendment as it relates to America’s religious history. Someone unfamiliar with America’s religious history would more than likely find a law professor’s arguments persuasive. His current article on the Second Amendment is equally not persuasive. In fact, I found it muddled.
But let’s take up the good professor’s argument as he takes full advantage of the freedoms protected by the First Amendment. Here’s some of what Professor Stone wrote:
“Consider, for example, the First Amendment, which provides: ‘Congress shall make no law … abridging the freedom of speech.’ This also sounds absolute. But does the First Amendment mean that the government cannot constitutionally regulate speech?
“Justice Oliver Wendell Holmes put that possibility to rest in 1919 with a famous hypothetical. ‘The most stringent protection of free speech,’ he observed, ‘would not protect a man falsely shouting fire in a theater and causing a panic.’ In other words, even though the text of the First Amendment sounds absolute, it is not.”
It’s important to note that the First Amendment does not create the right of the “free exercise” of “religion” or the right to speak, write (press), and assemble, even to “petition the government for a redress of grievances.” These are God-given rights, or as secularists like to say, “natural rights.” These rights are not to be infringed upon by government: “Congress shall make no law . . . prohibiting the free exercise [of religion].”
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The Declaration of Independence made the same point:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
As Professor Stone points out, there are limits even to these God-given or natural rights. You can’t, for example, shout “fire” falsely in a crowded theater. Such a proclamation could cause panic. As theater-goers headed for the exists, some people might get trampled. If there really is a fire, the audience would want to know.
Notice the qualifying word “falsely.” You also can’t slander or libel someone, or assemble unlawfully on someone’s property.
So far, none of these examples apply to gun ownership except in the unlawful use of a firearm.
These rights are absolute as long as they don’t infringe on the rights of other people. In what way does my owning guns infringe on someone else? The infringement only comes if I use one of my guns in an unlawful way, that is, if I injure or murder someone with it. The courts can decide if the use of my gun was unlawful (manslaughter or murder) or not (self-defense) in the same way that the court can decide if my use of the provisions of the First Amendment were used in an unlawful way.
The protected freedoms found in the First Amendment aren’t taken away because of the possibility or even the potential that I might use them unlawfully. My freedom of speech is not taken from me when I enter a movie theater where I or anyone else could or might yell “Fire!”
Just because some people disobey the law does not mean people who don’t should lose their freedoms.