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.