Reader Jake F. writes:

I live in California, in the anti-gun bastion that is the heart of Silicon Valley. My state’s Attorney General just banned new handguns from entering the state. My state Assembly and Senate are mulling over more ways to further limit my rights, and I keep hearing one specific argument over and over in regards to why our Second Amendment rights are subject to whatever whims the pols in Sacramento deem actionable . . .

It’s an argument I’ve seen employed quite often by the pro-disarmament crowd that never made any sense to me. An argument regarding rights not being absolute, and it is an argument that is not often refuted. The response is generally lackluster, pointing to Heller for support, only to have that argument dismissed by those who believe Heller was handed down by a court that is “too conservative” or some other nonsense.

Others point to counter-arguments regarding an interpretation of the Second Amendment that is not supported by society, law or jurisprudence, and is consequently weak. And sometimes the argument is simply ignored, which is especially easy to do when dealing with people one feels are misinformed or stupid. But ignoring a problem doesn’t (usually) negate its existence. I hope to change that and allow everyone who encounters this argument the ability to rationally and calmly explain to the person making such a fallacious statement that they are wrong, and why.

The argument generally goes along the lines of:

“Rights aren’t absolute!  You can’t yell “fire” in a crowded theater, which is a restriction on the First Amendment! Just like the First Amendment, the Second Amendment is not absolute, which means when we ban your assault rifle that will be constitutional!  Explain to me how you can’t yell “fire” in a crowded theater but you can own any gun you want!”

The retort is thus:

“Restrictions on rights relate to the way in which the rights are exercised, not the form of the exercise itself.”

To elaborate, we don’t restrict the types of speech, whether it’s spoken, written, visual, or otherwise. You aren’t allowed to yell fire in a crowded theater, nor are you allowed to send a text to all the theatergoers exclaiming that they’re about to be consumed in flame. Neither are you allowed to intercut the film with footage declaring that everyone in the theater will be killed unless they immediately evacuate in a mass panic. The act of using speech to cause panic is what is restricted, not the way in which the message is delivered.

Similarly, we do not restrict the types of speech when it comes to forms of political speech, be it rhetoric delivered to a crowded amphitheater, flyers dropped in a mailbox, telephone calls, commercials, etc. The act itself is protected and we acknowledge that if the act is legal and just, then it doesn’t matter in what way the act is undertaken. Speech is protected in all of its forms, so long as the expression itself is legal.

Subsequently, access to all of the various forms of expression is not restricted by the government. However there are natural factors that come into play when determining what types of speech you may use at a given moment. A hoarse throat can restrict you from giving a speech, an unpaid phone bill can prevent you from calling somebody, or perhaps one doesn’t know how to read or write.

These restrictions are natural or incidental, but they are not undertaken by force of law.  The government does not have its hand in how you may exercise your right to free expression, and the limits on that right are overcome through personal effort and ability, or other incidental or societal factors unrelated to the law.  Restrictions on the types of arms in our possession must be looked at in the same light.

What does it matter if I protect myself with a shotgun, a handgun, or an AR-15? What does it matter if I merely own them, as is my right? Why does the tool I use to protect myself matter? If nobody else comes to harm but my aggressor, what does it matter? If the principle of self defense is a right, why would one arbitrarily restrict the tools I may use to exercise that right? Furthermore, why should the government determine, by force of law, in what manner I may exercise my natural right to self-defense?

To argue that we are allowed to restrict a right based not on the way it is exercised but rather on the tools with which we exercise it allows arbitrary restrictions on our fundamental principles. It leads to violations of our civil rights, be they warrantless interception of emails or phone calls, undue scrutiny on political dissent, or bans on the tools of our personal defense. To restrict not what we do but rather how we do it, even where no other laws are broken, is detrimental to the fundamental values of our society.

58 Responses to Regulate the Act, Not the Tool

  1. You’re preaching to the choir here and the people you’re arguing with don’t care about rights. These mouth-breathing hoplophobes reflexively want the state to punish others that do or own things they don’t like, because they are small-minded intolerant busybodies. Few of them would be brave enough to come for you or your guns themselves. They are craven cowards.

    • I disagree. He is not preaching — he is providing a cogent argument for the choir to “sing”. I greatly appreciate the presented logic.

    • Time for a smackdown over this particularly nasty term, “mouth-breather”.

      I don’t expect you to know enough to practice circumspection re: your own language, but you’re clearly blissfully unaware that a number of human beings have sinoidal deformities and sinus issues that, at times, or permanently, incapable of breathing through their nasal passages. THEY’RE NOT SLACk-JAWED CRETINS, they simply cannot breathe well (or at all) through their noses.

      So I’m just going to assume you’re ignorant and did not intend any meanness, okay?

      • I intended meanness toward our common enemy, not you or anyone else here who has breathing troubles.

        Google the term and visit the Urban Dictionary link.

    • I disagree, as well. This is an important distinction, action vs. tool, that merits further thought and exchange of ideas. I’ve been in gatherings where someone brings up the “restricted rights” argument and the shouting fire in a theater example. To which I respond that such rights restrictions are context-specific and focus on one’s exercise infringing on someone else’s rights; not on stand alone, pre-emptive prohibitions of people’s rights across the board.

      Given the shouts of fire in a theater example, we can thus agree that likewise we should have a law banning firing a gun in a crowded theater? Yes? Oh, wait a minute. We already do have laws against that. So we’re done, right?

      That leaves a lot of people either silent, stammering or simply declaring “No, that’s not the same thing!”, but not backing that non-counterpoint up with anything. Occasionally, someone will either agree, or say something at least acknowledging that it’s an interesting point and a perspective they hadn’t before considered.

      Civil rights is a game of inches, I suppose.

  2. Google are based in California.

    That company who has vehicles driving around the streets in the United Kingdom taking photos of people’s property.

    That company which complies with the demands of the Reds and thier Great Firewall of China.

    That company who’s CEO’s vetoed a board decision to protect freedom of expression.

    That company who’s vast corporeal international influence is protected by a Police state and legislature that is bent on disarmament of peons who freely choose to reap the taxed benefits of living beneath its skirt.

    • I see Google street view cars all the time. Its hard to miss thoes tiny cars with giant camera towers on the roof. If I wasnt at work, in uniform, driving a giant billboard I would be flipping them off whenever I had the chance.

      • If I had the provisions I would do much greater things than that.

        Alas, I cannot cite “As means of disabling Google Street View Car engine blocks” as a valid reason for requesting a large caliber firearm license in the UK. Something to do with Public liability and aggravated vandalism with a firearm.

        • Keep it simple. You didnt know anything about thoes wood splinters in the road with nails in them.

  3. Well said, sir! Unfortunately I think your use of reason and logic has disqualified you from consideration in the current emotional debate…

  4. Out of the original 10 amendments in the Bill of rights, all address individual freedoms. Out of the 10 our founding fathers only saw fit to add “Shall Not Be Infringed” to one of them. Why is this so hard to understand? The Brady foundation can suck it.

    • Shall Not Be Infringed – Provision and tacit approval for acts of terrorism in and around areas populated by non-combatant to be conducted. It constitutes provision for air raids over and targeting unarmed peoples.

      Hamburg, Dresden, Berlin, Pforzhiem, Baden Wurttenberg et al.

      Sow the wind, reap the Whirlwind B.

      • Does not make sense. My right to keep and bear arms has nothing to do with acts of War committed 70 years ago.

  5. The First Amendment is subject to “time, place and manner” restrictions. Protest marches, a classic form of protest speech, can be regulated, just not banned. Restrictions must be “content neutral”, i.e, no censorship of the message. However, vulgarity and obscenity can be banned, even if part of political speech. Commercial speech has always been subject to restriction. So no, the First Amendment is not “absolute. But then again, the language of the Amendment is that the Congress shall make no law “abridging the freedom of speech.” So as long as speech is allowed, certain restrictions have been deemed permissible.

    Contrast this to the Second, which perhaps has the most express statement of permissible limitation: the right…shall not be infringed.” Infringed in this context means that the right shall not be undermined, invalidated. This h as been considered significant.
    ‘But then there is Heller. In dicta (nonbinding verbiage that reflects the Court’s thinking but not its holding), Scalia stated that certain infringements are permissible, for example laws that ban possession of firearms by felons and the mentally incompetent, as wall as limitations on time and place, e.g., specified “sensitive places” like schools, governmental and court buildings, and the like. Unfortunately, none of these comments were necessary to the decision, and may have reflected only that the court hasn’t considered these issues–but the comments have been nonetheless employed by the gun banners as validating any number of restrictions, from magazine capacity, to CCW limitations, to arms bans and ammo bans, and to registration requirements. They can argue, logically enough, that registration does not infringe the right to keep and bear, which is true enough until they decide to ban and confiscate, and then we are into a whole other can of worms. Until–and it is improbable–that the Supreme Curt decides that “shall not be infringed” means exactly what it says, restrictions “for the benefit of public safety” will continue to be passed by legislative bodies and validated by courts.

  6. Jake F – my deepest sympathy. I was able to escape the People’s Republic of California when I retired 9 years ago, and all I can tell you is that freedom still exists outside the PRCa. Eventually, the KGB/PRCa will close the borders to future escapees, because the refugees will be taking “their” money (which actually belongs to the PRCa pols) with them. When that happens, I still have contacts with freedom-loving people in the rural areas of the northeastern part of the PRCa, who can help you escape through back roads. You will need a high-clearance 4X4, but these folks are good, reliable guides. Contact this web site to post your request for help.

    • I have family that work a considerable area of land in California, farming food. These folk have been given few choices by the progressive vermin over the decades ;Liquidate a family business and move or stay the course and fight the sub-human neo-statists with every they stone cast returned to point of origin.

      What joy.

      • The other point missed is that you can yell “fire” in a crowded theater to incite panic. You will be liable for your actions, but there is no mechanism that physically prevents you from committing the act. You just lose legal protection granted by free speech. Banning guns is akin to duct taping your mouth shut as you enter the theater, just in case you were going to yell fire. Not many would sign off on that being an appropriate action to promote the safety of theater goers.

        • ^ got it, this is the heart of the false parallel they grabbers are trying to draw, and the briefest way to eliminate the intentional misunderstanding the argument is intended to create.

          Assertion: You can’t yell “fire” in a crowded theater, which is a restriction on the First Amendment!

          Response: Of course you can yell “fire” in a crowded theater. Just like you can use your gun to commit murder. Both acts are immoral and illegal, and both come with heavy consequences. Free will in a free society: that’s how it works. Or should we just lock you in a secure, padded room to make sure you never do harm? Or assign you a personal police officer to follow you everywhere you go?

          The thing is, in their little black heart of hearts, they really WOULD like to assign a personal police officer to follow you everywhere you go.

        • “Response: Of course you can yell “fire” in a crowded theater. Just like you can use your gun to commit murder. Both acts are immoral and illegal, and both come with heavy consequences. Free will in a free society: that’s how it works.”

          And again, what is rapidly becoming my favorite part of the books in the “A Song of Ice and Fire” series (that’s Game of Thrones to many of you):

          Jon Snow: “And when I’m free,” he said slowly, “will I be free to go?”
          Ygritte: “Sure you will.” She had a warm smile, despite her crooked teeth. “And we’ll be free to kill you. It’s dangerous being free, but most come to like the taste o’ it.”

  7. In Calif. Put “EL” in front of your name and tell them your illegal. Than you can do what you want. LOL

  8. “You can’t yell ‘fire’ in a crowded theater”

    Gun grabbers who leverage this argument often use it incorrectly. The phrase stems from a SCOTUS opinion in the case Schenck v. United States. In the decision, Justice Holmes spoke about a “clear and present danger” presented when the phrase is used falsely:

    The most stringent protection of free speech would not protect a man in FALSELY shouting fire in a theatre and causing a panic. … The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

    So you can yell fire in a theater if there’s actually a fire, you just can’t do it falsely to create a panic. Just like your RKBA is protected by the 2A, but it doesn’t protect someone from brandishing their firearm in a mall claiming there’s an active shooter when they know it’s not true. Only in the mind of the most rabid gun grabber does the mere possession of a semi auto ar-15 w/ 30 rd mag constitute a “clear and present danger”.

  9. Hughes’ quote is still misunderstood. He did NOT say that a person is forbidden from falsely yell “fire” in a crowded theater. Hughes had no power to create such a rule. It’s up to a legislative body to determine that shouting “fire” in a crowded theater is illegal, not some court.

    He said that “[t]he most stringent protection of free speech” would not protect such an act. There’s a big difference. Hughes was commenting on whether or not speech presenting a “clear and present danger” could be limited. In other words, he did not and could not create the law, he could only enforce the law from the bench.

    Some people don’t understand the difference between legislation and adjudication. Some judges too.

  10. An excellent insight I’ve not heard before. Bravo!

    Your concept is related to the concept of “prior restraint” in that speech can’t be restrained prior to actually speaking – that’s called censorship. Similarly 2A rights can be constrained because of what might be done to misuse those rights.

    Sadly, neither your concept or the prior restraint concept make for pithy sound bites. Imagine someone trying to explain them to Piers Morgan or in some other interactive situation. But this is powerful stuff for thoughtful people of good intent, and the courts.

  11. I can’t take credit for this, but this is the best rebuttal I’ve heard to anyone who says “it’s ridiculous that you can’t yell ‘fire’ in a crowded theater but you can carry a loaded gun!”:

    True, you can’t yell “fire” unless there’s actually a fire. Turns out that even if you have a gun in the theater, you can’t actually use it unless there is a credible threat to life and limb. Requiring that I leave my gun at home because it could be used to shoot someone is like saying that I must duct-tape my mouth shut before entering a theater because it could be used to yell “fire”.

    • But you have to understand the mindset–the presence of a gun, standing alone is (to them) a clear and present danger to public safety. The more guns, the greater the risk. Just ask the police chief of (most) any large urban area, they’ll tell you its true. In fact, they’ve so testified, even though there is not a single study they can point to that supports this opinion. And this is why you can’t get a CCW in LA. And why self-defense is not a good and sufficient reason to bear arms in public–why your need must be “greater” than that of the average citizen. [Actually I’ve never understood this concept–it necessarily implies that only those of us who have special needs have a second amendment right, but clearly not all of us. How that squares with a constitutional right possessed by all is not comprehensible.]

  12. WE also need to understand that the gun control views used in Calif. and the other slave states is PURE Marxism , with that we look at the TRUE source of our 2A and other rights. FROM the Declaration of Independence ,it states = 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(self-defense),liberty (any gun you want) and the pursuit of happiness(to be left along from government control of your rights)!The 2A is the LAW of the land , there can be NO higher laws, to do so is a CRIME etc…(to keep and bear arms by the people ) SHALL NOT BE INFRINGED! Even in the Bible JESUS told the 12 sell your coat and buy a SWORD! ( for self-defense) the highest of all laws is God! they may not like it… but that’s the facts.

    • Marxism has nothing to say about the subject of guns. Marx was proposing a new economic system designed for the betterment of all of the people. Now how those principles were effectuated under Lenin or Stalin were a far different story. But as a friend of mine was fond of commenting, the Russians are peasants who seem to prefer living under the control of an iron-fisted dictator, whether that be a Czar or a political strong man (dictator).

  13. Great missive Mr. Zimmerman. One of the clearest, most logical dissections of the argument I have read. I feel a bit frustrated with the fact that outside of TTAG, the distribution of this type of argument will get little exposure. As long as major media outlets stifle anything even remotely pro 2A, we are agreeing among ourselves. Much like the NHCA, the opinions and wants of the majority hold little sway with lawmakers who feel the need to “Do Something (Stupid)” if only for career preservation. The illegal restriction of the Second in a growing number of states, imo, bears this out. Thank you for illustrating the flaws of the opposition’s position so clearly. Thank you to TTAG for being here. To paraphrase a popular though old quote, for the first time in my adult life, the government really scares me.

  14. Good write up. I enjoyed it. But I’d like to add that the “yelling fire in a theater” fallacy was thoroughly debunked by one of the greatest champions of liberty who ever lived; Murray Rothbard. In one of his seminal works, “For a new liberty”, he put is as follows:

    “I would like to take this opportunity, once and for all, to set the record straight on the famous old cliché: “after all, no man has a right falsely to shout fire in a crowded threatre.” This formula of that old cynic, Justice Holmes, has been used time and again as an excuse for all manner of tyranny. Just exactly why does no man have this right? Is this really a case where libertarian principle must give way to a diluting “prudence”? There are two possibilities: either the shouter is the owner of the theatre or he is not. If he is the owner, then he is clearly violating the evident contract which he made with the patrons: to put on a play which the patrons can watch – a contract which they executed in cash. By disturbing this performance, he is violating the contract. If the shouter is not the owner, then he is clearly trespassing on the owner’s property. He was permitted on that property on the ground that he would peacefully watch the play, a contract which he is obviously violating. The false shouter of “fire,” therefore, is punishable not because free speech should be restricted, but because he is violating the property right of others. And property right, in libertarian principle, is one of the basic natural rights of man.”

    That quote is actually from a speech, I think, but it’s roughly the same in the book.

    • Interesting argument, if perhaps a bit narrow in scope. I would be curious to know how the property argument would apply to causing panic in a public commons.

      • It may seem narrow, but what he’s doing is boiling it down to its essentials. According to Rothbard (and many others) all human rights are property rights. A proper understanding of this theory allows one to blast liberal arguments of seemingly “grey areas” out of the water with ease. Highly recommended reading for anyone.

      • Also, Rothbard is clear is his opinion of publicly owned land, and I think his argument would be to address that issue 1st which would render the “causing a panic” question moot.

        Searching for the best way to apply principle to an existing mess of government and quasi-government issues will always be fraught with inconsistency and compromise. You could make the argument for some sort of private patrol within the boundaries of the public domain which enforces “no panic” laws, but this would be a poor fix for the issue.

        • Very interesting. I’m not particularly familiar with anything beyond his economic principles, which I’m not particularly fond of. I’ll have to do some more reading, in any case. Thanks for pointing out this argument!

  15. You are trying to make sense of illogical people, don’t do that! The bloombergs have one motive & the bradys another. The bloombergs don’t want the “nice money making crime thing” to end & the bradys don’t want dear sweet criminals shot. In each case though you are villified for taking out or defending from a model citizen. Its huricane Katrina all over, same old sh.t different twist, Randy

  16. I’ve been saying this for a while, given that i need to explain this ALL THE TIME since i too live behind the 2A iron curtain known as NJ. That’s how i explain it though:

    “Yes you can’t use the word ‘fire’ to cause mayhem in a movie theatre, but the government cannot ban the use of the word fire because of its potential misuse. You have a right to say the word ‘fire’, you also have a right to an AR-15 and a 30 rd mag, but you don’t have the right to misuse either of them to cause mayhem in a movie theatre.”

  17. Marxism/satanism/communism encourages the obliteration(stealing) of All private property and any and all rights of WE the people . and puts all power in the hands of the state… Calif. and all other slave states… SLAVES can not have a gun or read any book they want, or any church they want , or join and support any party etc,etc. MARK was total devil worship…and was the cause of more that 300+ millions people being killed against their will….

  18. You aren’t allowed to yell fire in a crowded theater, nor are you allowed to send a text to all the theatergoers exclaiming that they’re about to be consumed in flame. Neither are you allowed to intercut the film with footage declaring that everyone in the theater will be killed unless they immediately evacuate in a mass panic. The act of using speech to cause panic is what is restricted, not the way in which the message is delivered.

    Actually you can do those things, it’s only criminal if people are harmed as a result of your actions.

  19. This article is a little long winded. I have encountered this argument before, and I simply reply; The Gov’t does not restrict you access to the word “Fire”, nor do they punish you for using it lawfully. You are considered responsible enough to have it in your vocabulary, should the need arise to use it. Why should a firearm be any different.

  20. OUTSTANDING SIR!!! Finally a clear separation of the what and the how. I knew that 1st vs 2nd argument was flawed, but could not articulate how. Thankyou.

Leave a Reply

Your email address will not be published. Required fields are marked *