Underneath yesterday’s post National Concealed Carry Reciprocity is Unconstitutional! Or Not . . . , TTAG commentator Big Bill writes “There is no such thing as an absolute right. Can you yell ‘FIRE!’ in a crowded theater? Even with the first amendment?” It’s an argument gun control advocates trot-out from time-to-time to counter the Second Amendment’s plain language . . .
As Second Amendment absolutists say, what part of “shall not be infringed” don’t you understand? Answer: “the right to keep and bear arms.”
Keep means have, as in possess. Bear means to carry on one’s person. And . . . that’s it. The Second Amendment doesn’t prohibit the government from limiting the use of these arms. For example . . .
In Texas, a municipality can ban citizens from discharging a firearm on a tract of land smaller than 10 acres (unless it’s for lawful self-defense). Residents can keep and bear firearms on a sub-10 acre plot, but cities can ban them from shooting those guns (unless it’s for lawful self-defense). That’s not unconstitutional.
In contrast, residents who want to carry (i.e. “bear”) a firearm in Texas have to get a government permission slip; requiring an application, fingerprinting, background check, four hours of training, a shooting test and a fee. That is clearly unconstitutional.
Big Bill is correct when he insists that the First Amendment doesn’t protect someone shouting “FIRE!” in a crowded movie house — if doing so causes harm. But you can shout FIRE! if there’s a fire.
By the same token, Uncle Sam can’t stop someone from entering a theater because the government has reason to believes the parton might shout FIRE! in a crowded movie house, creating panic and harm. This is no small point . . .
The First Amendment prohibits prior suppression of free speech.
Nothing prohibits the government from holding citizens accountable for the effects of their free speech — save the difficulty proving that a speaker directly, knowingly and maliciously caused harm by his or her speech. Unless it’s something like creating panic or physical harm by falsely and maliciously shouting FIRE! in a crowded movie house.
The First and Second Amendment forbid the government from prohibiting the keeping and bear arms or the exercise of free speech. They don’t stop the government from punishing citizens whose firearms or speech causes harm AFTER THE FACT.
Our Founding Fathers knew that laws that attempt to stop unwanted activities before they occur are both ineffective and dangerous. Inherently tyrannical.
What would the FFs have made of FBI background checks for gun purchases, ammunition magazine limitations, “assault weapons” bans, carry permits, bullet taxes and the like? A constitutional abomination and a direct affront to freedom. Like . . .
Banning the word “FIRE” in case someone might use it in a crowded theater (that wasn’t on fire).
So, in fact, the right to keep and bear arms is absolute, as is the right to free speech.