The Second Amendment and Yelling Fire in a Crowded Theatre

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Every time there’s a discussion about gun laws in the United States, someone invariably brings up the old line about how you “can’t yell fire in a crowded building” as the example of a reasonable restriction on rights. But where does that phrase come from? What does it mean? And what’s the appropriate parallel for gun rights in the United States? I’m no lawyer, but having read the applicable case law and possessing a modicum of common sense, I think I finally have a handle on this.

Let’s travel back in time for a moment to 1919. The United States has just stepped into the first World War, and with the high death tolls being experienced by all sides Uncle Sam is kicking the draft into high gear and hoovering up all the able-bodied men.

As with all wars there are war protesters, and the most vocal of these is Charles Schenck. While most protesters are content to scream from the sidelines, Charles Schenck begins actively encouraging draftees to refuse to serve because he believes that conscription is a form of slavery. The draft has long been a staple of wartime America, but since the passage of the thirteenth amendment following the end of the Civil War things have gotten a bit hairy. Within the context of the thirteenth amendment, it’s possible that compulsory military service might indeed be construed as a form of slavery and therefore illegal. Charles Schenck has a point, and the government wants him to shut up about it.

The case against Charles Schenck went all the way to the Supreme Court. The government argued that Charles Schenck’s literature was damaging the war effort and harmful to the United States. Charles Schenck claimed that the First Amendment protected his freedom of speech, and that he was allowed to say whatever the hell he wanted. In the end, the court decided unanimously that “when a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right” (opinion by Holmes). In other words, Charles Schenck would be tolerated during peacetime, but the First Amendment did not protect him during wartime. As a method for determining what kind of speech would be exempted from that First Amendment protection, the Court set out a test.

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.

This is where we get the line “shouting fire in a crowded theater.”

Shenck v. United States is generally considered to be “junk” law these days and superseded by a century of case law which makes the ruling useless today, let’s act for a second like it matters and apply the same standards to the Second Amendment. Oh, and let’s ignore that whole part of the ruling where the justices stated that reasonable restrictions are only OK during a time of war.

According to Schenck, freedom of speech is always protected EXCEPT when that speech presents a “clear and present danger” to the nation or to individuals. In the theater example, yelling fire when there is no fire causes a panic which can cause people to be trampled and killed. The injury and death of the patrons is an immediate and direct effect of the word “fire” being shouted, and is a predictable effect of the person’s actions. The person knows exactly what the impact of his actions might have, and it is the malicious intent which exempts them from protection under the First Amendment.

I want to highlight that. It is because (1) the person knows that his words will cause immediate harm, (2) the person uses his speech solely to cause harm, and (3) that the end result is predictable, that the speech is not protected under the First Amendment.

This is the most extreme the court has ever been in terms of restricting the First Amendment rights of a citizen, and even in this ruling the court was still relatively narrow in its decision. Only in a specific set of circumstances that the speech is not protected under the First Amendment, and in all other cases that same speech would be completely protected. For example, if the statement were true (that there actually was a fire), the speech would be protected even if the other conditions were also present (the immediate harm and such) because the person would be alerting others to the danger and attempting to save lives instead of cause damage. Or if there were no people in the theater, since there is no immediate harm from yelling the words, the speech would be protected. But in that specific set of circumstances the First Amendment is curtailed.

Let’s move on to the Second Amendment. As it stands today, the Second Amendment is recognized as an individual right to keep and bear commonly owned firearms. The courts ruled in Heller that the Second Amendment is an individual right to keep and bear common firearms, and the McDonald case incorporated it to the states. In those rulings, the justices continued to hint that “reasonable restrictions” would not infringe on the Second Amendment. So, using the Schenck ruling, let’s see if we can’t figure out what those reasonable restrictions might be.

The most common claim of the gun control advocates is that “you can’t own whatever you want.” They believe that restricting certain types of firearms is “reasonable” under the second Amendment, and they like using the example of a nuclear bomb to illustrate the point ad absurdum. However, under Shenck, it fails the test. As we know, simple possession does not mean that there is immediate and predictable harm coming to individuals. Despite millions of guns sold every year and well over 40% of the population owning a gun, only a few thousand deaths are reported each year. If gun ownership were a immediate and predictable indicator of death and destruction then the number should be in the millions. Therefore, the claim that bans on specific guns is a “reasonable restriction” is bogus even under Schenck.

It goes further than that, though. Schenck requires that the action, whether speaking or buying a gun, is done with the intent to cause harm. As in the example, a person can yell “fire” in a crowded theater if their purpose is to alert others and try to save their lives. In the same way, buying a gun for self defense would seem to be a protected reason for owning any firearm — especially since over 50,000 defensive gun uses happen every year (according to the Brady Campaign).

So, even under Schenck‘s “yelling fire” test for reasonable restrictions, it looks like any infringement on the types of firearms available for sale is in fact an unreasonable restriction. In fact, as far as I can tell, it is currently legal for me to build my own nuclear bomb so long as I’ve paid the $200 tax to the ATF to register my new destructive device under the NFA. But while the types of arms available are protected, what about the methods of use?

The gun control advocates are quickly losing the war against concealed carry, which makes sense because even the carrying of a firearm does not constitute a reasonable restriction under Schenck. As we’ve discovered, a restriction is only reasonable if the activity is known to cause immediate harm and that a reasonable person can see a direct cause and effect between the activity and the immediate harm. With concealed carry, as the numbers have shown, those who have a concealed carry permit are 10 times LESS likely to commit a murder than the average population, and less likely even than the police. If the activity of carrying a firearm was indeed a predictor of causing harm (in any time frame, really) then those numbers would be reversed and concealed carry holders should be more likely to commit a murder. But they’re not.

So, even under the “you can’t yell fire in a crowded theater” test, it looks like restricting the types of firearms available for sale and restricting the manner in which they can be carried are both unconstitutional. That just about kills all of the gun control advocates’ agenda. But is there anything that would actually fit under Schenck as a non-protected activity with guns? Yes, actually.

Consider at what point the original fire-yeller actually broke the law. When they walked into the theater, with their voice fully functional, they weren’t breaking any laws. Every person has the capacity to yell “fire” at any time — there is no filter over their mouths preventing them and yet they are not breaking any laws. Even as they considered the possibility of yelling fire, that though alone was still not breaking the law (we can discuss “conspiracy” in a different post, but you get my drift). The point at which the person’s actions and speech were no longer protected was the moment that they actually yelled “fire” while a fire was not present.

For firearms, the same standard currently applies and makes sense under Schenck. Owning a gun is protected under the Second Amendment, as merely possessing a gun does not predictably lead to immediate harm. Walking around with a gun is protected for the same reason, because hundreds of thousands of police officers and concealed carry holders carry guns every single day and only a fraction of a percent ever cause bodily harm (in any form, self defense included) over their entire lifetime. Firing a gun at a firing range is protected, since gun ranges are considered some of the safest places in the United States by insurance companies who offer policies to businesses. But firing a gun in public is where we start to run into a Schenck-related lack of protection. However, even there, there’s an important difference.

If you fire a gun with the intent to kill an innocent person, that is not protected under the Second Amendment as the immediate and predictable effect of pulling the trigger is harm to another individual. You have yelled fire without an actual fire being present, and your action was intended solely to cause harm and therefore is not protected.

But if you fire a gun to defend yourself from an attacker, then that action is absolutely covered under the Second Amendment. While the immediate and predictable effect of pulling the trigger is harm to another individual, that individual was attacking you and the courts decided many centuries ago that people have the natural right to defend themselves. Your action was meant to save your life, not necessarily to cause harm to theirs. You yelled fire in the theater, but there was actually a fire and your intent was to save lives. Therefore, your actions were protected.

This is why I cringe every time a gun control advocate uses the Schenck example of “you can’t yell fire in a crowded theater” to justify whatever restriction du jure they are after. In their minds, the fact that the Supreme Court ruled that the First Amendment does not extend to a very specific set of circumstances, then they have a blank check to shred the balance of the Bill of Rights. In reality, even in a situation where the justices may have over-stepped in their rush to shut up a dissenter, they didn’t even consider in their wildest dreams the kinds of restrictions that the gun control advocates are screaming for.
But for those who actually understand the law, we just sit back and shake our heads in shame for those who don’t understand what they’re saying.