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.

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90 Responses to The Second Amendment and Yelling Fire in a Crowded Theatre

  1. The gun control calls everything reasonable. Its as overplayed as a Miley Cyrus tune. Not so long ago, the violence policy center called the DC handgun ban reasonable in its amicus brief to Heller. Hey, we are just all trying to be reasonable. One intruder, one bullet. That seems reasonable. If you miss, it seems only fair that they be able to shoot back.

  2. The problem with the analysis is that while freedom of ‘speech’ can only be restricted for a clear and present danger, the court’s definition of speech is probably a lot different than yours or mine. Political speech is really the only thing protected in that manner, which is why you can get arrested for disorderly conduct for saying all sorts of things in public, and all it takes is someone being annoyed. Even political speech is often regulated… anyone remember freedom pens?

    I get it. You want to have a rebuttal for the pithy phrase about shouting fire in a theater. Well, first of all, a lengthy response like the above won’t convince anyone who uses a glib argument to begin with. Second, I wish people would stop pretending that the 2nd Amendment is the only one with restrictions. It is not. The problem is not that the 2nd is the only one being run over, the problem is that many of them are being infringed…

    • I equate gun ownership restrictions not with being constrained from shouting “Fire” in a crowded theater, but rather with having your mouth duct-taped shut on the way into the theater because you might shout “Fire.”

      • Exactly. OW Holmes was incorrect in his use of this analogy. You CAN yell fire in a crowded theater, and there are times when it is hoped you would do so. But if you LIE and falsely yell it, you can be held responsible for that action. However, one will not be presumed to be thinking of making such a false shout just because one is entering a building or theater. Thus, your free speech is not curtailed.

        I can also claim that my magic powder sprinkled in your water will make you live forever. I can be held responsible for that claim being false as well. I am allowed to speak freely, and so long as it is not false I have no fears. Schenk is junk law because it would disallow free speech that is “dangerous” but true. That doesn’t withstand criticism. Free speech can very well inflame emotions, hurt feelings, even incite angry reactions. But that does not make such speech illicit, indeed it is exactly that speech which NEEDS protection.

        • “I can also claim that my magic powder sprinkled in your water will make you live forever. ”
          Yes! In this instance you can hold me responsible for not having lived forever, BUT ONLY AFTER YOU DON’T!
          My “Magic Powder” works, and YOU can’t prove that it doesn’t! You, Sir, have committed a liable on my reputation. A “glove-slap” and a challenge to you, you ingrate. Choose your weapons!
          I also have a “Magic elixir” that repeals elephants. When I am in the Republic of Panama, I use it every day and have never seen an Elephant there.
          Proof that it works.

        • You are making a clear health claim for your Magic Powder. You have to prove it. Ask the FDA. Good luck with your Phase III trials….

        • Elephant Powder banned! Another violation of rights! The burden of proof is on the accuser, not the accused. The FDA should be required to prove the anti-elephant powder DOES NOT WORK, ever, not the producer of the powder prove that it does.

        • “I can also claim that my magic powder sprinkled in your water will make you live forever. ”

          That has nothing to do with free speech. If you try to poison my water, I have the right protect myself from said poisoning.

          But just talking about it gives people the opportunity to see that the would-be powder-sprinkler is a nincompoop.

        • Exactly. There is a vast difference between the consequences you may suffer for inappropriately yelling “Fire!” and a governmental exercise of prior restraint.
          In applying that standard pf prior restraint to a 2nd amendment issue, the gov’t is already preemptively withholding the tools of that right until background checks are performed, and you are deemed safe enough to use it, or just not allowing you to have that tool at all, at the same time as they provide those same tools to their own employees.

          Firearms licensing schemes all tend to be subject to a civic or law enforcement official’s personal views, not just of someone’s suitability to enjoy constitutional rights, or of an individual’s moral virtue, but of the whether anyone should have the right. Those considerations should not be factors in regulating the exercise of constitutional rights.

      • Yes. Exactly. Preemptive duct tape. There is NOTHING preventing you from yelling “fire” in a theater, there are just consequences if you do. Preventing you from having a certain type of gun because you could cause harm with it is presuming guilt and is quite akin to forcing muzzles on people before they can enter a theater. When I very first got started putting up some YouTube videos, I made a really particularly low production value one on this same topic: http://www.youtube.com/watch?v=KXOBh0Wvnqc …and one that I liked more about banning images of “assault weapons”: http://www.youtube.com/watch?v=ayfceuGYYAY

    • Lengthy response can be Sparknoted though.

      You’re right, we’re not allowed to yell fire in a crowded theater if there isn’t a fire and we just want to cause a stampede. So we shouldn’t be allowed to take our guns and shoot random bystanders with them. But movie theaters don’t gag you (although sometimes we all wish they did) upon entering, so why should I have all these restrictions on me when I want to own a gun?

    • Lengthy response can be Sparknoted though.

      You’re right, we’re not allowed to yell fire in a crowded theater if there isn’t a fire and we just want to cause a stampede. So we shouldn’t be allowed to take our guns and shoot random bystanders with them. But movie theaters don’t gag you (although sometimes we all wish they did) upon entering, so why should I have all these restrictions on me when I want to own a gun?

    • Schenck was convicted in federal district court on December 20, 1917. It takes a while for a case to get to SCOTUS (which ruled on the case in January 1919, “only” 14 months after the conviction).

    • I was going to correct that too. I wouldn’t have if the article had made it clear that the alleged offence occurred in 1917, and took time to get to SCOTUS in 1919. Instead it included the words: “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.”
      Could that possibly be MORE inaccurate? This is the type of error that we must always seek to avoid, or the anti bullies will seize on it like a Gila Monster, and never let it go. I know, they make it up as they go along, but we have the moral high ground, and have to do better than them. I respect Mr Leghorn greatly, but this error needs to be fixed, before it becomes a bullies talking point! Esp the; “1919. The United States has just stepped into the first World War”. That is an anti’s wet dream just waiting to be made an example of. I can hear them already: “They think WW1 was in 1919! If they think that, why should they have guns? They’re dangerous enough to… bla bla bla”.

      • I agree … while it seems like a minor error, it’s clearly an error and should be corrected. And yes, the anti-gun folks will use anything that appears to damage the credibility of the pro-gun side.

  3. I would somewhat disagree with your assessment:

    “.. 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.”

    What the court considered were weapons that were ‘in common use’ without defining what that meant. A fact which came up in the orals before SCOTUS in HELLER. Solicitor General Clement, arguing in support of DCs ban/storage requirements, pointed out the the lower court ruling under consideration (DC Court of Appeals) supported private ownership of machine guns/ true assault rifles as they are in common use today by infantry around the world, specifically pointing out their use by the National Guard. He also pointed out the lower courts ruling on the progress of technology not limiting the application of a constitutional right. ( lower court’s discussion of the modern semi-auto pistol being a ‘lineal descendant’ of the colonial era flint-lock pistol on page 53 of their ruling).

    So– the right as considered by the court didn’t clarify whether 2A is limited to what is commonly owned given current restrictions or pre-existing restrictions, or to the weapons in common use around the world which would be necessary to effect the 2As purpose as determined by the lower court to enable the citizens to oppose government tyranny.

    (I’ll post the appropriate excerpts from the ruling and orals later if I remember)

    • While I understand that acting in violation of SCOTUS rulings (for individuals, not for cities and states, apparently) can have adverse legal consequences, just as ignoring unconstitutional gun laws can have detrimental effects, I really wish we could stop referring to SCOTUS decisions as some sort of Holy Grail of legal precedent. As with Dred Scott, Roe v. Wade, and now Schenk, it is VERY obvious to me that the decisions returned from these men have no particular Constitutional validity. They are the opinions of MEN appointed to their posts by other men who have political agendas and chose their nominees because their politics were generally in agreement.

      While I have not made a thorough study of it, I wonder how many of the Constitutional issues ever ruled on by SCOTUS are reasonable and logical interpretations of that document and how many are purely serving the politics of the temporary majority of liberal v. conservative sitting on the court?

      Schenk was ruled UNANIMOUSLY? What a travesty! I intend to add this to my list of reasons why we can NEVER take a SCOTUS decision as a final ruling. While their reasoning in re yelling “Fire!” may be logically valid the decision that an American citizen may not speak out against the actions of the government just because it may thwart a policy of that government is in DIRECT contravention to the purpose of the “Freedom of speech” clause. To accept that ruling as valid no war protest would ever be valid once the president or Congress had voted in favor and EVERY citizen would be subject to forced servitude at the whim of the government. How is that not Tyranny in its most blatant form?

      And to apply Schenk to the Second Amendment, the government would be authorized purely on the argument of public safety, to shut down this blog, arrest anyone protesting anti-2A legislation in the street, and confiscate any weapon suitable for use in insurrection against the sitting government.

      We can enjoy the slight and temporary advantage we “sometimes” realize from SCOTUS opinions such as Miller, Heller and McDonald, but we MUST NOT give them the status of Holy Writ. SCOTUS today is one judicial appointment away from turning the balance from conservative to liberal and there is no previous SCOTUS ruling that cannot be entirely reversed by a subsequent court. Four out of five disagreed with Heller. Always keep that in mind.

    • Ok, not holy writ, but FWIW here are some things that future rulings will have to consider in establishing what are ‘reasonable restrictions’ on 2A rights. Orals show the type of analysis which might be applied when it comes to types of weapons…

      DC Court of Appeals ruling that was upheld by SCOTUS:

      “To summarize, we conclude that the Second Amendment
      protects an individual right to keep and bear arms. That right
      existed prior to the formation of the new government under the
      Constitution and was premised on the private use of arms for
      activities such as hunting and self-defense, the latter being
      understood as resistance to either private lawlessness or the
      depredations of a tyrannical government (or a threat from
      abroad). In addition, the right to keep and bear arms had the
      important and salutary civic purpose of helping to preserve the
      citizen militia. The civic purpose was also a political expedient
      for the Federalists in the First Congress as it served, in part, to
      placate their Anti-federalist opponents. The individual right
      facilitated militia service by ensuring that citizens would not be
      barred from keeping the arms they would need when called forth
      for militia duty. Despite the importance of the Second
      Amendment’s civic purpose, however, the activities it protects
      are not limited to militia service, nor is an individual’s
      enjoyment of the right contingent upon his or her continued or
      intermittent enrollment in the militia.”

      Where the lower court addressed technology and its relation to rights (which references the standard in Miller)
      Pg 53
      “The modern handgun—and for that matter the rifle and
      long-barreled shotgun—is undoubtedly quite improved over its
      colonial-era predecessor, but it is, after all, a lineal descendant
      of that founding-era weapon, and it passes Miller’s standards.
      Pistols certainly bear “some reasonable relationship to the
      preservation or efficiency of a well regulated militia.” They are
      also in “common use” today, and probably far more so than in
      1789. Nevertheless, it has been suggested by some that only
      colonial-era firearms (e.g., single-shot pistols) are covered by
      the Second Amendment. But just as the First Amendment free
      speech clause covers modern communication devices unknown
      to the founding generation, e.g., radio and television, and the
      Fourth Amendment protects telephonic conversation from a
      “search,” the Second Amendment protects the possession of the
      modern-day equivalents of the colonial pistol. See, e.g., Kyllo
      v. United States, 533 U.S. 27, 31-41 (2001) (applying Fourth
      Amendment standards to thermal imaging search).”

      The above paragraph came up in orals before SCOTUS. (Note the eventual court ruling limited itself to the two issues brought before it (1. DC Ban on handguns 2. DC Storage requirements) and didn’t address defining ‘reasonable restrictions’ in terms of weapon types)

      SCOTUS orals discussion
      GENERAL CLEMENT: Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult — I don’t want to foreclose the possibility of the Government, Federal Government making the argument some day — but I think it is more than a little difficult to say that the one arm that’s not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that’s what the machine gun is.
      CHIEF JUSTICE ROBERTS: But this law didn’t involve a restriction on machine guns. It involved an absolute ban. It involved an absolute carry prohibition. Why would you think that the opinion striking down an absolute ban would also apply to a narrow one — narrower one directed solely to machine guns?
      GENERAL CLEMENT: I think, Mr. Chief Justice, why one might worry about that is one might read the language of page 53a of the opinion as reproduced in the petition appendix that says once it is an arm, then it is not open to the District to ban it. Now, it seems to me that the District is not strictly a complete ban because it exempts pre-1976 handguns. The Federal ban on machine guns is not, strictly speaking, a ban, because it exempts pre – pre-law machine guns, and there is something like 160,000 of those.
      JUSTICE SCALIA: But that passage doesn’t mean once it’s an arm in the dictionary definition of arms. Once it’s an arm in the specialized sense that the opinion referred to it, which is — which is the type of a weapon that was used in militia, and it is -it is nowadays commonly held.
      JUSTICE SCALIA: If you read it that way, I don’t see why you have a problem.

      GENERAL CLEMENT: Well, I — I hope that you read it that way. But I would also say that I think that whatever the definition that the lower court opinion employed, I do think it’s going to be difficult over time to sustain the notion — I mean, the Court of Appeals also talked about lineal descendants. And it does seem to me that, you know, just as this Court would apply the Fourth Amendment to something like heat imagery, I don’t see why this Court wouldn’t allow the Second Amendment to have the same kind of scope, and then I do think that reasonably machine guns come within the term “arms.”

  4. Here! Here!
    If the logic of gun control restrictions were applied to the freedom of speech, we would be required to surrender our tongues and voiceboxes to the state in order to attend a movie, play or concert.

  5. As stated, your voice (or writing, etc.) is a protected right until misused in a way that causes harm.

    Gun control is like cutting out everyone’s tongue so they CAN’T yell fire.

    • “Gun control is like cutting out everyone’s tongue so they CAN’T yell fire [even in a burning building].”

      There is a catchy and concise retort that can be employed against the “can’t yell fire” argument.

      Let’s face it, we’re dealing with an opponent with a very limited capacity for reason, so we have to keep our arguments short and catchy at first so we can gain a toehold that will enable us to start developing those capabilities.

      • I agree. A good way to wake up the brain dead. I’m going to use it whenever I hear “cant shout fire in a crowded theatre”. Up to now I always said; “I can if there’s a fire!” Now I’m going to add; “What you are proposing is to remove EVERYONE’S tongue, so no one can EVER shout fire, even if there is one! How much sense does THAT make?”

    • Exactly and indisputably correct. People do not understand that the 1A is not “restricted” as everyone likes to believe, even in the context of the case cited here. The right itself is in no way restricted – not having protection under that right for misusing the right itself is not the same as the right being restricted.

      • It’s essentially the same thing. Rather than restricting your right to free speech, what needs to be done is for the one who caused the stampede to be held responsible for the consequences. You could probably have the same effect by shouting “Shooter!” or “Terrorist” or “Poison gas!” (or these days, “Smoker!”)

        A law against picking off random strangers in the subway doesn’t infringe on the perp’s right to OWN the gun, it’s just that nobody has a “right” to cause harm with it.

  6. Gun control advocates see the armed citizen as a potential threat to public safety. In fact, some presume that any person going armed is prima facie evidence that the person has the propensity (and no doubt, the intent) to go kill as many people as the person has bullets. Most well heeled citizens do not read into the Second Amendment, a right to perpetrate offensive violence. Most rational people see there is a difference between bearing arms and assaulting others. Justice Oliver Wendell Holmes, in his Clear and Present Danger test, asserts that shouting “FIRE!” in a crowded movie house is not protected speech. We are to assume the shouter knows that there is no fire. The alert is a prank intended to induce panic. Holmes never suggests that a person’s voice should be limited-just in case. If we apply that to the Second Amendment, we must that recognize that keeping and bearing arms is the equivalent of possessing a voice.

  7. Nick,

    Well done. I am a lawyer and can tell you that you have more commanding comprehension of the above subject matter than most lawyers and judges.

    A funny thing happens when you start interpreting the Constitution using a consistent formula based on the original intent of its words; it starts making perfect and simple sense. The tortured formulas that courts use today to reach their conclusions is purely a product of intellectual corruption and dishonesty.

  8. “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”

    That is also a modern Libertarian position which is not a valid argument under the Second Amendment. The draft is nothing more than the call up of the unorganized militia. The draft has always been administered by the state governments operating under a quota system based on population just like the organized militia or US Volunteer forces. The right to bear arms stands alone but the Militia clause is not mere artifice either. Without it the draft would be unconstitutional especially after the passage of the 13th amendment.

    As far as reasonable restrictions go I can build a case that would limit the choice of weapons available to the public to those used by serving member of the infantry. Narrowly speaking that would mean the private citizen could only own a fully automatic M-4, the M-9 pistol, the Benelli M-2 and a Remington 700 in 308 or 338 Lapua. More broadly, the regulation could expand the accepted weapons to any fully automatic rifle or carbine in 5.56 NATO, all full sized 9mm pistols, 12 gauge shotguns and bolt action rifles in the same calibers. I would be hard pressed to say that even the narrowest interpretation would prevent me from exercising my right to self-defense, hunting or target shooting.

    • “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 counter-argument regarding the draft being Constitutional and therefore legal I find circuitous and problematic along the lines of “…shall not be infringed, except…”

      Not only is the 13th amendment stated just as clearly as the Second: “Neither slavery nor INVOLUNTRAY SERVITUDE (emphasis mine), except as punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” I do not see the “except” in this wording other than incarcerating criminals.

      And there is also the wording of the Fifth Amendment: “…nor shall be deprived of life, liberty or property, without due process of law…”

      Compulsory military service IS involuntary servitude. By its very nature and application you can be FORCED into service, forced to do whatever the government demands that you do, deprived of your liberty, and intentionally placed in harm’s way where you may be deprived of your life.

      The military draft is NOT Constitutional, regardless of SCOTUS or any convoluted interpretation of the Militia regulations. I served 6 1/2 years in the U.S. Army, voluntarily. During Viet Nam I had a lucky lottery number, but prior to that I did everything I could to avoid getting drafted because I disagreed with the government’s reasons for that war and their prosecution of same. I believe that if the government in power cannot persuade sufficient numbers of citizens to volunteer for military service this is the equivalent to a referendum on their policy. They either need to improve their argument in favor or accept that their constituents disagree and are not willing to support their war. Under no circumstances does the government, at any level, have the authority to violate my unalienable rights to life, liberty and the pursuit of happiness to pursue THEIR political goals with which I may disagree.

      To believe otherwise is to believe that in the event of (shhh…insurrection) the government may conscript any one or all of us into their military to fight against the very principals we hold dear, and to either shoot us for treason or put us in prison if we resist.

      We have the ABSOLUTE natural, civil and Constitutionally protected right to speak out against ANY government policy, peaceably assemble for such purpose and to petition the government regarding those grievances, and failing that to un-peaceably assemble for the purpose of changing/replacing that government.

      • That “except in times of war or national emergency” thing has been used by the Washington regime for quite some time. That’s part of the reason they’re doing everything in their power to keep the country in a perpetual state of “war.” I put the word in quotes because the last time they went through channels and got an actual declaration was WWII.

    • ” The draft is nothing more than the call up of the unorganized militia.”

      As Cliff pointed out, this statement is utterly, completely wrong. It is not voluntary – you’re not allowed to say “no” if you’re drafted (if you do, you lose your freedom because you are sent to prison). The draft results in involuntary servitude, is absolutely unconstitutional, and has no place in a free society.

  9. Good analysis IF the Second Ammendment was added for the purpose you analyzed. It wasn’t. It was added to insure that American citizens would always have the right and ability to protect themselves from a tyrannical government. Self defense, hunting, recreation were taken for granted.

    That said, to apply the can’t yell fire argument to gun ownership (people might get hurt by a gun so your right to own one must be restricted) would require prohibiting talking in a theater, not just restricting what was said.

  10. Dear Mr. Foghorn:

    “restriction du jure” ==> “restriction du jour”?

    Bob McD, the speling an’ grammer Natzi

  11. Well this touches on a topic that I considered for a second entry in the FNS-40 contest … of which Hannibal also mentioned. When is the exercise of a right, even though the exercise does not harm anyone, “wrong”? I put the word “wrong” in double quotes because it is a loaded term in every possible sense.

    Let’s look at some examples … and I will even constrain my examples to honest-to-goodness political speech. Can I stand up in a theater and begin criticizing a current government official? Can I hold up a large sign in a theater that criticizes a government official? Can I stand outside in the middle of the road and speak or hold up such a sign? I would argue that all three of those examples illustrate situations where exercise of free speech is wrong and not protected.

    How about some other situations. Can I go to a street corner (on the sidewalk) to hold up a large sign with a giant photo of an explicit sex act to protest lax pornography laws? Can I set up a deafening public address system in front of City Hall and criticize the mayor? Again, I would argue that both of those examples illustrate situations where exercise of free speech is wrong and not protected. And they are wrong for two important reasons. First, those exercises seriously disrupt the fellow citizens in proximity to the exercise of speech. Second, there are alternative ways (locations, times, methods) of exercising speech that enable the concerned citizen to be highly effective without disrupting fellow citizens in proximity to the exercise of speech. For those two reasons and those two reasons alone, the examples of free speech that I listed are wrong and not protected.

    And the overall point is actually quite simple. Everyone is empowered to exercise all of their rights in a way that is effective and in their own style. And we are empowered to exercise those rights in a way that respects the fundamental human dignity of our fellow citizens. We are NOT empowered to exercise our rights in a way that intentionally harms other citizens or insults their fundamental human dignity.

    So how does all of this tie into firearms? A citizen who has a firearm does not intentionally harm anyone. A citizen who has a firearm does not insult the fundamental dignity of a fellow citizen. On the other side of the coin, any person or law that forbids a citizen from simply possessing a firearm insults that citizen’s fundamental human dignity. And there is no functional alternative to a firearm that enables a citizen to defend themselves so effectively from a large variety of attacks. That is why I cannot think of a single “reasonable restriction” on the Second Amendment.

    • If your action takes place on private property then you can be restricted. The Bill of Rights applies to the government not individuals. You should be good go on any public property.

    • A wise man once said this very clearly, worded as; “Your freedom ends where my nose begins”.
      One’s rights end, when the exercise of those rights restricts the rights of another. NO ONE person’s rights are any more important than another’s. In your example, obviously no person’s right to political speech trumps another’s right to watch the movie that they paid to see.
      This is what the anti’s so clearly refuse to take note of. That their “right to FEEL safe” in no way trumps another’s right to BE safe! In their view, rights are only for them…

    • I would challenge you at this point…

      “…First, those exercises seriously disrupt the fellow citizens in proximity to the exercise of speech. Second,…”

      The disruption you indicate as First is the only limitation. The First Amendment allows you to assemble peaceably. Meaning you are welcome to step up on the soap box and say your piece, but if you are going to disrupt anyone else in doing so you are disrupting their rights. The Sign is fine, standing in the middle of the street and, presumably blocking traffic, not so much.

      “…Second, there are alternative ways”

      Not relevant. You can hold up a sign, or you can hold up a computer monitor, or you can hold up a puppet on a stick. The limitation on the right comes from disrupting others rights. If I don’t like your sign I don’t have to read it. What the sign says has nothing to do with your right to carry it and it is my choice to decide if I want to be offended by your sign. If you are blocking my path with your sign you are going to have issues because now you can be considered to be disturbing the peace and are no longer in compliance with the intent of the Right to assemble peaceably.

  12. The “yelling ‘fire’ in a crowded theater” comment is actually most likely a reference to a specific event, the 1913 Italian Hall disaster in Calumet, MI during the copper mining strike. Though far from the only incident of someone causing panic by inferring danger, it would have been fresh in the court’s mind, having been major nation news mere years earlier, and it had a particularly large death toll (73, mostly children). Also, since the culprit has never been found, the court undoubtedly was looking for a way to make it possible to try them with something more harsh than existing laws would allow.

    Sorry, I had a class that was working with the Parks Service to prepare a proper memorial service for the event’s centennial, and had to do a lot of historical digging. That comment actually came up a lot in local news articles.

      • That’s the thing, though, under most interpretation of the law at the time, the perpetrator could have been argued to not have been liable for manslaughter, since his actions didn’t directly cause any deaths, the actions of others present did.

        As a side note, if anyone is familiar with the incident or the lore that has been built up around it, despite what Woody Guthrie would have you think, the guilty party was most likely a drunk who was thrown out of the bar downstairs from where the party was being held. It’s entirely possible that the reason they never stepped forward and admitted guilt was that they didn’t know they did it in the first place.

  13. You are actually required to yell ‘Fire!’ if there really is one. As you noted, almost everyone omits the ‘falsely’ when recounting this phrase of that now-replaced opinion.

    That same ruling was mentioned by a Supreme Court justice (Breyer) as a rationale to support laws to prevent people from insulting Islam:

    Isn’t it a bit scary that a currently sitting SCOTUS judge (1) would think this way, and (2) would not know that the opinion was no longer current?

    ===|==============/ Keith DeHavelle

    • So we cannot insult Islam for the very reason that they ARE in fact as dangerous as we are accusing Muslims of being, but we (not me, 3rd person we) can insult Amish to our heart’s content precisely because they will never tool up and come after us? Is there any way to impeach a sitting SCOTUS justice?

      • This is unfortunately true — and provides a clear incentive for jihadists to become more and more violently offended by more and more acts, so that the speech of others is ever more curtailed. As with guns, this curtailment of rights is bit-by-bit.

        What do you call someone who advocates a gradual, incremental reduction of individual rights?

        A creep.

        ===|==============/ Keith DeHavelle

  14. The First and Second Amendments cannot be conflated. First Amendment jurisprudence is unlike anything else in American law, and Second Amendment jurisprudence is still in its infancy. They are not the same.

    Still, Holmes’ half-witty bon mot (he was a good writer and a bad judge) rears its discredited head from time to time and needs to be dealt with. Falsely shouting “fire” in a crowded theater where it is likely to cause injury or death might be somewhat comparable to an aggressor firing a gun in a crowded theater under the same circumstances. In either case, it’s the action that is punished, not the mere ability to do something bad or the ownership of certain goods.

  15. It’s only a right under the Constitution until the Supreme Court issues another fantasy ruling curtailing or eliminating that right.

  16. It’s not that counter-intuitive. A guiding principle has always been that you don’t have the right to use your liberty to harm others. Or more eloquently “your freedom to swing your fist ends where my nose begins.”

    How does this apply to the Second Amendment?
    Well.. I guess you don’t have the right to fire your rifle in a crowded movie theater. But you’ll note that evil, deranged people are perfectly happy to ignore that little detail and shoot up movie theaters anyhow.

    • I would argue that just like yelling “Fire”, you absolutely have the right to fire your rifle in a crowded theater, IF you are addressing a real threat to public safety. If your actions are criminal, that’s another matter.

      You also have the right to have your pistol or other weapon with you in that theater in order to protect yourself and others from criminal activity. Would the theater owner or any government entity be correct in prohibiting you from carrying a fire extinguisher into the theater with you?

  17. Nicely put. I would shorten it to say this: If the theater was on fire, wouldn’t you want someone to yell “Fire!”?

  18. Excellent post. It’d be really fun to inform someone citing the “fire” restriction that that came about from restricting someone protesting the war/draft/slavery.

  19. So the anti gun nuts are also saying it is illegal to yell fire in a theatre, when there really is a fire, do tell?

  20. I can absolutely yell, “fire” in a theater but the courts have said I can be held liable for the consequences of that speech. This is significantly different than regulating my speech by removing my vocal cords and akin to being held responsible for your actions if you should negligently discharge your firearm or injure a bystander while using your firearm.

  21. There is a saying in the Talmud that goes something like this:

    Culture/Tradition is stronger than law.

    Consider a bunch of rabbis wrote that about the Torah they darn near venerate. I would rather have a few people die from needless stampedes in theaters (and have the perp get away w/ it) then have so-called “reasonable restrictions” on speech. I would rather a few blood feuds ensue from wild fist swinging than lose the recognition of the right to swing fists.

    When it comes to government regulation, the cure is oftentimes worse than the disease. How does the saying go? Freedom is not free? It ain’t a (recognized) right until it gets in the way and you still keep it. If more Americans adopted this mindset we could do to gun regs the same thing we did to the prohibition of alcohol.

  22. I’m always amazed at how many people think nothing of regurgitating a “talking point” that they’ve heard so many times, they assume it MUST be true. “Yelling ‘fire'” is a perfect example. People smugly “vurp” up this seemingly nicely packaged and concise argument without having ANY clue.

    It’s gotten to the point of being “sport” for me to lead people into making this blunder and then firing a fact-filled “broadside” at them. They never have a follow-up except to stutter, “but… but… but…” and then nothing.

  23. It’s even simpler with the prior restraint argument. Yes, “shouting fire in a crouded theater” will get you in trouble. Restricting firearm sales is to prevent illegal use is analagous to requiring patrons to duct tape their mouth shut before entering the theater to prevent anyone falsely reporting an emergency. Actually, it’s more like cutting out your tongue when you’re born.


      I’m finishing my coffee!
      Enjoyin’ my coffee…

  24. 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.

    The question then becomes, though, if you were to yell fire in the theater, and the theater was on fire, and someone was injured while trying to escape, would you be liable for their injury?

    Cuz if I shoot someone in self defense, and that bullet were to ricochet and damage property or hurt another innocent person, would I be liable for that or would the target I was defending myself from?

    • Not being a lawyer, but having had some paralegal training, I would say that would fall under the “proximate cause” definition. The person who initiated the action would be responsible for damages caused by his actions. The person defending him/herself against those actions would also be a victim and not responsible for the detrimental results.

    • As I understand it, from reading this and subsequent opinions: You are not liable, as you lacked the intent to incite harm, a required component of the charge. Even if you were mistaken, and there was no fire, this would remain true.

      ===|==============/ Keith DeHavelle

    • Ah — but your last paragraph I think is entirely dependent upon the jurisdiction (true at least partially of the earlier one as well): In some places, you can be liable if someone becomes frightened and hurts themselves just knowing you have a gun. “Evasion injuries” — it seems that we gun owners are worthy of special treatment by the government that (way back when) we brought into being.

      ===|==============/ Keith DeHavelle

  25. Here is the list of arms the the U.S. Military lists as individually carried and operated. If you buy the “militia purpose” and had any restrictions it would have to be to restrict all firearms / personal arms sales to this list:

    M9 (Beretta 92FS, 9x19mm)
    M11 (SIG Sauer P228, 9x19mm)
    M45 (Colt Marine Pistol .45cal)
    Mk 25 Mod 0 (SIG P226 Navy, 9x19mm) (Naval Special Warfare)
    M9A1 (Beretta 9x19mm) (USMC)
    MEU(SOC) pistol (.45 ACP) (MEU(SOC))
    Kimber ICQB (.45 ACP) (USMC MARSOC)
    Mk 23 Mod 0 (.45 ACP) (USSOCOM)
    SIG P229R DAK (.40 S&W) (USCG)
    M1911A1 (.45 ACP) (Army, Marines, USSOCOM)
    Heckler & Koch HK45C (.45 ACP) (Naval Special Warfare)
    Glock 19 (9x19mm) (USSOCOM, DEVGRU)
    Glock 22 (.40 S&W) (Delta Force)
    HK P11 (Underwater Pistol) (SOCOM)

    M16A4, (5.56x45mm NATO)
    M14 SMUD (Stand-off Munition Disruption rifle, 7.62x51mm NATO) (USAF)
    M16A2 (5.56x45mm NATO) (USAF, USCG, & US Army)
    M16A3 (5.56x45mm NATO) (Navy SEALs and Seabees)
    SCAR-H Mk 17 Mod 0 (Battle Rifle, 7.62x51mm NATO) (US SOCOM)
    M4 carbine (5.56x45mm NATO)
    M4A1 carbine (5.56x45mm NATO) (USSOCOM, US Army, USAF, SEALs and select USMC units)
    Mk 18 Mod 0 CQBR (CQB assault rifle, 5.56x45mm NATO) (USMC Force Recon, Coast Guard, and US Navy SEALs)
    GUU-5/P (Automatic carbine, 5.56x45mm NATO) (USAF)
    M231 FPW (Firing Port Weapon, 5.56x45mm NATO) (US Army)
    SCAR-L Mk 16 Mod 0 (Assault rifle, 5.56x45mm NATO) (US SOCOM)
    HK416 (Automatic carbine, 5.56x45mm NATO) (Delta Force,SEALs, JSOC units)

    M500 (pump-action 12 Gauge)
    M590 (pump-action 12 Gauge)
    M590A1 (pump-action 12 Gauge)
    M870 (pump-action 12 gauge)
    M1014 (semi-automatic 12 Gauge) (Marines and Army)
    M26 Modular Accessory Shotgun System (bolt-action 12 gauge attachment) (Army)

    Heckler & Koch MP5/MP5K/MP5SD (9x19mm Parabellum) (special operations only, not standardized)
    MP5N (9x19mm Parabellum) (US Navy)
    MP7A1 (4.6x30mm) (Navy SEALs)
    Colt 9mm SMG (9x19mm Parabellum) (USMC)

    Rocket/Grenade Launchers:
    M136 (Bofors AT4; Disposable recoilless rifle, 84 mm)
    M141 Bunker Defeat Munition (US Army)
    M72/A1/A2/A3/A4 LAW (Disposable rocket launcher, 66 mm) (USMC/USAF)
    M202 FLASH (Incendiary rocket launcher, 66mm)
    FGM-172 Short-Range Assault Weapon (Disposable missile launcher, 140 mm) (USMC)
    M203/A1/A2 (Grenade launcher, 40x46mm)
    FGM-148 Javelin
    M72A5/A6/A7/A8/A9/A10 Light Anti-Tank Weapon (Disposable rocket launcher, 66 mm) (Army)
    M32 Multi-Shot Grenade Launcher (Grenade launcher, 40x46mm) (USMC)
    M320 grenade launcher (Grenade launcher, 40x46mm, Army)

    • List Continued:

      Rocket / Grenade Launchers cont:
      Mk 13 Mod 0 EGLM (Grenade launcher, 40x46mm)
      M79 (Grenade launcher, 40x46mm) (Special Forces, Navy SEALs)
      XM25 Individual Airburst Weapon System (Magazine-fed grenade launcher, 25 mm LV airburst) (Army)

      M67 fragmentation grenade
      AN/M14 thermite grenade
      AN/M8 white smoke grenade
      AN/M18 colored smoke grenade
      M7A3 CS Gas Grenade
      M25A2 Riot Control Grenade
      M47 Riot Control Grenade
      AN/M83 White Smoke Grenade
      M84 stun grenade
      M116/A1 Flash Crash
      MK3/3A1/3A2 Concussion Grenade
      Mk.141 Mod 0
      M100 Grenade Rifle Entry Munition (GREM)

      Anti-personel Mines:
      M18A1 Claymore Anti-personnel mine
      MM-1 Minimore Anti-personnel mine
      M15 Anti-tank mine
      M19 Anti-tank mine
      M21 Anti-tank mine

      Model 1840 Army Noncommissioned Officers’ Sword A modern version of this sword with steel scabbard is currently permitted for wear by US Army platoon sergeants and first sergeants; in practice it is rarely seen outside the 3rd Infantry Regiment and honor guards. Some Army NCOs have this sword and wear it for social occasions.
      Model 1852 Navy Officers’ Sword
      Model 1860 CPO Cutlass[18][19]
      Model 1902 Army Officers’ Sword
      Coast Guard Officers’ Sword
      Marine Noncommissioned Officers’ Sword, 1859–Present
      Marine Officers’ Mameluke Sword, 1875–present
      Air Force Academy Cadets’ Sword, c. 1955–present
      West Point Cadets’ Sword, c. 1922–present

      ASEK (Army)
      M9 bayonet (M16 series)
      M7 Bayonet (M16 series)
      M11 Knife (EOD)
      OKC-3S Bayonet (Marine Corps only)
      Mk 2 Knife (Ka-Bar)
      Gerber Mark II
      Mark 3 Knife (SEALs)
      Mission Knives MPK Knife (SEALs, Navy EOD, and USMC)[1]
      Strider SMF (USMC)
      SEAL Knife 2000 (SEALs)
      Tomahawk (VTAC)

      • In spite of the quite lovely list of ordinance, I believe the “common use” test to be a dead end alley. It precludes the adoption of anything new into the definition of common use. There are plenty of modern (post ’86) weapons, not on this list, that will never be in “common use” because they cannot be commonly purchased and aren’t widely used by the military. This applies to older weapons as well, for which, whether through, law, access, production or popularity, “common use” is no longer evident,

        • I’m going to agree with you and reject the “common use” test as SCOTUS over-reach of heir authority, and also because neither my S&W 686 nor my Ruger SR9c appear on those lists.

  26. Well put, we don’t cut out our tongues everytime we go to the movies. Whether or not we should remove our ears to avoid listening to such trash might be open for discussion since it can frequently be construed as cruel and unusual punishment given the trash that shows these days.

  27. I’ve always considered the “one trigger pull, one shot” to be a reasonable distinction between “military” weapons and “personal use” weapons, if you wanted to allow for something like that — in the hands of the citizenry, 300 million strong, it is sufficient to put a serious doubt into the minds of over-reaching politicians about their capacity to pull off any real obvious coup d’tat… Yet by limiting it to one-pull, one shot, you also limit the real potential for mass chaos by an individual. So you retain the primary purpose of the 2ns — retaining the capacity of the citizenry to say “Eph You!” to politicians and government in the final test of wills, while at least limiting the potential for aberrant individuals to do harm…

  28. IMO, “arms” should be defined as weapons, including all of the components of said weapons, that can be carried and operated by an individual that are used to kill individual people and/or animals, but are not capable of destroying things. So semiautomatic rifles, assault rifles, pistols, shotguns, swords, bow and arrow, knives, etc…are all arms. Shoulder-fired Stinger missiles are not arms because those are capable of destroying things. Grenades are not arms because those are capable of destroying things. And so forth. Whether an arm is in “common use” should be utterly irrelevant.

    Also, the gun control people try to twist the “common use” definition. Does “in common use” refer to the type of weapon or to the weapon itself? For example, semiautomatic rifles have been in common use for many years. Semiautomatic rifles with detachable box magazines, such as AR-15s, however, were not necessarily in common use until the last few decades. So prior to this, could AR-15s and Kalashnikovs and so forth have been banned because such weapons were not in common use when such weapons are very clearly arms?

    I do not agree with the post’s definition of speech that can be outlawed for the reason that if I go and make a video insulting Islam, that could very much put people into clear and present danger. But the blame for people being attacked by terrorists would be on the terrorists themselves, not me for making the video. Crying fire in a crowded theater causes people to respond in a way that is not of their choice. They are just reacting to try and save their life. It isn’t like insulting someone who then actively decides to go and attack a person.

  29. Yelling fire in a crowded theater is quite different from possessing ANY firearm. You can possess vocal cords and lungs…it’s using them to endanger others that’s a problem…yelling fire in a crowded theater can lead to someone being harmed. Likewise I should be able to possess a full auto rifle and whatever I want…possession and use in a civil fashion endanger no one….just like speaking normally endangers no one. Now, Full autos aside, I can’t practice with a .22 single shot in my backyard because I live in the city where there is no way I can safely discharge ANY weapon without endangering a neighbor. But I can go to the gun range and dump lead down range all day long safely without harming anyone. Yelling fire in a crowded theater can endanger others…firing a gun in an unsafe location endangers others. Possessing the ability to speak isn’t restricted…possessing a firearm shouldn’t be either until someone demonstrates an inability to do so safely.

  30. One of the Founding Fathers left us with a definition of tyranny that is perfectly in sync with our constitution. Statists and the anti-liberty crowd, but I repeat myself, cannot mentally process such clear language but all of the grown-ups will understand it instantly:

    “Tyranny is defined as that which is legal for the government but illegal for the citizenry.” ― Thomas Jefferson

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