It is oft said in gun rights circles that the Second Amendment protects the first, as well as the other enumerated (and un-enumerated) rights in the Bill of Rights. Strictly from a Constitutional Law perspective, I’ve always thought this to be a little facile. The Fourteenth Amendment has actually played a huge role in protecting and advancing all of our civil liberties; and without a strong right to free speech, the Second Amendment wouldn’t be in anywhere near as good shape as it is. The amount of times that the right to keep and bear arms has actually counted in terms of making a true difference in American politics is . . .
incredibly small. The exceptions are notable in part because of their rarity. Only the Third Amendment arguably gets less play. (For the record: they’ll take the keys to my guest bedroom from my cold, dead hands.)
Still, I’ve often wondered if there is a difference in the moral fiber of a citizenry whose government is prohibited (more or less) from interfering with the right to keep and bear arms.
Is there a correlation between the existence of a universal right to keep and bear arms and a people being more willing to fight for their rights when under threat by a government acting in the name of national security? Perhaps the very fact that firearms are at the ready in extremis makes Americans less willing to take government nonsense.
In the United Kingdom. David Cameron’s Conservative government recently won re-election. Most of the news coverage focused on the failure of pollsters to predict the Tories’ win, the crushing of the Liberal Democrats, the virtual disappearance of Labour in Scotland at the hands of the Scottish National Party, and the strong vote total of the UK Independence Party. One thing hasn’t got much play: the Tories’ plans for the rights of British citizens, which happens to be outlined on their website:
We’re committed to tackling extremism – and defeating it.
As the party of one nation, we’ll govern as one nation – and bring our country together by actively promoting British values, like democracy, the rule of law and equal rights.
These values are what define us as a society and to belong here is to embrace them.
We’ll confront extremism with new powers that are expected to include:
* Banning Orders for extremist organisations that incite hatred and Extremism Disruption Orders to restrict people who seek to radicalise the young and vulnerable
*Powers to close premises where extremists seek to influence others
*Strengthening the powers of the Charity Commission to root out charities who misappropriate funds towards extremism and terrorism
*Further immigration restrictions on extremists
*A strengthened role for Ofcom to take action against channels which broadcast extremist content
We’ll also review the application of Sharia Law in this country and do more than ever before to help isolated communities, uniting the country behind our British, pluralistic values.
Those values are superior to anything the extremists offer. We will bring communities together to defeat extremism in all its forms and create a better future for our whole country.
It’s not a bad list. Limiting immigration by people likely to be terrorists, or cutting funds to organizations likely to support terrorists at home, seems like a good idea – as long as we’re all on the same page with regard to what the word “terrorist” means, anyway. But what on Earth is an “Extremism Disruption Order“? The Guardian offers a description:
The orders, the product of an extremism task force set up by the prime minister, were proposed during the last parliament in March, but were largely vetoed by the Liberal Democrats [the Tories’ former coalition partners] on the grounds of free speech. They were subsequently revived in the Conservative manifesto.
The measures would give the police powers to apply to the high court for an order to limit the “harmful activities” of an extremist individual. The definition of harmful is to include a risk of public disorder, a risk of harassment, alarm or distress or creating a “threat to the functioning of democracy”.
The aim is to catch not just those who spread or incite hatred on the grounds of gender, race or religion but also those who undertake harmful activities for the “purpose of overthrowing democracy”.
They would include a ban on broadcasting and a requirement to submit to the police in advance any proposed publication on the web and social media or in print [emphasis added]. The bill will also contain plans for banning orders for extremist organisations which seek to undermine democracy or use hate speech in public places, but it will fall short of banning on the grounds of provoking hatred….
This is far from the first time that H.M. Government has tried to restrict the speech of its citizens. And I’d like to think that this is the sort of law that would get laughed out of Congress – recent wrangling over the renewal of the USA PATRIOT Act notwithstanding, It would certainly be a tough sell to the U.S. Supreme Court. More importantly, a lot of people would be making a lot of noise about it.
That can’t just because we have a Constitution and a Bill of Rights, with hundreds of years of jurisprudence behind us. The British have those, too. Perhaps it’s the monarchy? Countries with a better track record on civil liberties — such as the Netherlands — also have a Royal Family.
I suspect that the British peoples’ willingness to trade a little liberty for (theoretical) security has led them to devalue their other rights as well. No, I haven’t done a research paper on the subject (though if anyone’s willing to fund that, call me). But the fact that two countries with a shared culture could come to increasingly diverge on civil liberties is strange, no?
Americans who seek civilian disarmament often tout Britain’s gun control laws as an aspirational ideal. But Britain is a cautionary tale for civil liberties. America would do well to steer clear of its example, in many ways. The protections afforded by the Second Amendment may not be the key difference between the two countries in this regard, but they might.
DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.