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.
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.
I read the responses of the Reddit User StabaGunNut that submitted this and did the AMA. This comment stood out from the others.
StabAGunNut[S] -1 points 1 day ago
-I feel that male gun owners use their weapons to “prove their manhood.”
-Every gun owner buys a gun with an intent to kill SOMETHING.
-They have drones. They have laser-firing aircraft that can blow up one target every 15 seconds in a 150-mile radius. They have surveillance satellites, nuclear bombs, missiles, poison gas, tanks, aircraft carriers, bombers. The U.S. government beat the THIRD REICH. They beat JAPAN. And that was 75 years ago, with 2,000-mile long supply lines. Seriously, not to be defeatist, but it’s not like they’re going to invade with cotton-shirted police carrying pointy sticks. At least, not before they laser-bomb you from orbit using atomic drones with nerve gas.
Laser Firing Aircraft? WTF is that? I have heard that before. Take a look at the text of the “How to Win an Argument With a Gun Nut EVERY Time!” by Richard Rowe, linked to TTAG not days ago. It contains this verbage verbatim. Could it be Richard himself? Or a looney that he inspired?
I think not. Someone had the idea “If I scream loud enough and crazy enough from the ultra left, it will move people away from the pole and in to the center?” And he mined Richard’s crazy article for material.
It’s a good idea if you want to de-radicalize average folks in favor of gun control. Google Sherif and Hovland’s Social Judgment Theory for more information about how this could be effective. In short, every one of us hears an attitude/opinion and then sorts it compared to all the other attitudes we are familiar with. An extreme opinion forces the individual to subconsciously asses where their own opinions lie and either move towards or away from the opinion in question depending on how close it is to their own…
Taurus has horrible customer service, the Miami bunch will just run you around and lie to you if you have to send one back. They kept a brand new out of the box PT845 for 3 months running me around before I finally had enough and told them to send it back broken. After a yelling match with a A hole supervisor another supervisor called me back and said they would send a new replacement. Upon getting the replacement I promptly sold it at a loss and said never again with Taurus. YMMV but in comparison Glock takes back their guns, rebuilds them for free, and ships them back within a week. That 100.00 savings on a Taurus just isnt worth it.
Meh, the liberator is about 15 design generations ago.
Now we of the community have 5-6 shot pepperboxes revolver designs, some entirely plastic and bulky, and one 22lr design that’s palm sized and uses hydraulic tubing as a barrel liner.
We have AR lowers designed for 50 Beowulf, and lowers that integrate the stock buffer tube and grips, we even have a semi automatic in development that uses a glock barrel.
Cody Wilson accomplished his goals and left the game, but the plastic gun has evolved way past the liberator.
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.
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.
I recall a Klamath County Deputy Sheriff in Klamath Falls, Oregon back in the 1970’s. Being a
World War II U.S. Army vet, and likewise a part time gunsmith, he knew his weapons. In addition
to carrying a 4″ Smith and Wesson (K-Frame) Model 19 .357 Combat Magnum revolver in his
duty holster, he also had a P-35 9mm Browning Hi-Power semi-automatic pistol inside a
shoulder holster concealed beneath his jacket. The 9mm Browning Hi-Power obviously was
for backup. The deputy sheriff, who often transported prisoners, mentioned the Browning
was highly accurate.
I had to do one of my “Did I go to The Onion on accident?” double-takes after reading a few lines of this story.
We certainly arent required to duct tape our mouths just in case.
So, two identical rifles, one with this trigger, one with (another trigger of your choice)? Blind test?
So 500 dollars and I get a semi auto that has a 3rd position selector. I must be missing something. An explanation is needed. All I saw was a semi auto being fired fast, and the music was too loud.
I guess it is good marketing if they sell a bunch.
No, you don’t have to ask. Definitely illegal in California.
Nicely put. I would shorten it to say this: If the theater was on fire, wouldn’t you want someone to yell “Fire!”?
TAKE MY MONEY!
A good bit of practice can help you shoot almost as fast and save 500 dollars. Nice product all the same.
Too bad the sheeple will never bother to understand the difference between Castle Doctrine and SYG laws. And also never bother to actually read said laws to see how specifically narrow the protections really are. Instead, they like milk to a kitten, they lap up what the media puts out there, that these are “shoot first” laws, and accept that as truth. Hell, in a lot of states, heaven forbid you KNOW the person (even a little bit) you ended up shooting, the .gov might just charge you with a crime anyway, even if everything else is cut and dried. In CA, the law can be read to mean that you can NEVER use deadly force on a family member, even in self defense.
Dang. They’re tactical as F%&# in that video.
smh
I have a circle 10 Makarov. Never a problem, even with rusted bargain bin mags.
Very nice, I just wish someone would made something other then an AK, who wouldn’t want to see a “suppressed” (Note the (“”) marks) VSS chambered to an Amerikan caliber and using Magpul?
Definitive Arms can modify a 5.56 AK to use ar-15 magazines and have a last round bolt hold open. Military Arms Channel reviewed it and seemed very happy with it. http://www.definitivearms.com/main_page.html
Karma is a rather sarcastic SOB aint she!
When you have nothing to run on, try and wave the bloody shirt.
Here’s the deal, the people that took Gus in took the easy out they were lazy and didn’t want the hassle of all the paperwork involved and the long drive to take him to a facility where he could get care. It’s a small town sheriff and small town hospital that lacks appropriate staff they chose the easy way and now a man is dead an another is critically injured. For the record Deeds is not a gun control supporter his home is in a county where gun ownership is damn near 100% and the schools shut down for deer season. The damage control is already going hard and fast as the Sheriff and the hospital work to cover their mistakes and to make things easier for the folks in the county with money or power like they always do nothing will change because they won’t allow it to this will be swept under the rug and it will be the same story the next time a deputy takes someone in for a mental health eval.. hell you can’t get votes and stay in office if do your job by the book.
Why not just rewrite this amendment?
“The Constitution of the United States is hereby annulled.”
It’ll be a shorter time before everything else falls apart; gets it over with alot faster.
7 NBC San Diego; surprised they didn’t describe the five guns as an arsenal.
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.
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
…I just like this guy and his methodology.
Clear, concise – no bull!
Well you know I would definitely buy one of these, if I had an AR.
Let me know if they make one for a CETME’s trigger system!
I’m going to have to test the carbon remover on the muzzle crown of my AR, which gets seriously fouled and hard-crusted from shooting Soviet 7N6 milsurp 5.45×39. Even better, the crown is barely accessible with the muzzle brake installed.
Hoppes 9, which takes the carbon off everything else, barely touches this stuff. I’m looking forward to trying the KG cleaner on it.
New Rochelle? As in “The Blowfish Avenger gets New Rochelle”?
I think the JHP round on a 380 is pretty good myself. I’ve not shot anyone with it so I guess I don’t “know” it will stop them. I think it is as effective as about any other pistol round. I remember a video by a doctor in Florida some where and he felt that about 80% of the people who where shot with a pistol round lived. Had video of some dude shot with 3 9mm bullets who was walking in and out of the scene.
I would not want to use 380 to shoot at something that is more than about 7 yards away, but withing that zone I am comfortable with the round.
My favorite carry is a Bersa 380 with Hornaday bullets.
Oh, random question. What exactly is this term for this type of trigger? Is it ‘response trigger’? I’ve only seen this listed of paint ball makers, but not for firearms.
Troll.
The .380 is a 9mm short or worse than a .32. The .380 pistol is what used to be called a “belly gun”. You stick it in someones belly and pull the trigger. That’s an exaggeration but not by much. Better than nothing but with some great sub compacts in 9mm, ,40 and even .45 why waste money on an underperforming round.
Many micro 380 guns are lighter (and smaller) than the magazine alone of some of the ‘big three’ (9/40/45) guns. You really have to hold one of those little guys in your mitts to get a true idea of their size, or lack thereof.
It is a game and if you think it is anything but that you are a fool. Their rules are incredibly stupid and will get you in trouble if you practice them in real life.
But it is fun.
As to Hal’s point above, which I can’t reply to directly for some reason:
This is the best point I have read in a very long time.
Also, Paul G., very damn good points here as well.
If an adult can’t be trusted with a firearm, then they can’t be trusted, period. Either in jail permanently/deported/hanging from the gallows, or free and with the same rights as all free citizens.
This is not an argument for letting out violent scumbags and letting them be armed, but rather an argument for keeping violent criminals out of society altogether, and respecting free people’s right to keep and bear arms.
Wow, saw this on the news. I live in Clairemont in San Diego. This was a mile or so from my house. Unfortunate. But why was he showing him a loaded gun? Didn’t follow the 5 rules The gun should have been unloaded and should have been verified unloaded by his friend. And yeah, must have been an old firearm that didn’t pass the required drop test to be sold in CA. Felony stupid and now in big trouble and lost a best friend. Trifecta of bad luck.
Looks great, but you lost me with the several month turn-around. I can see it taking a few weeks, but several months? As in more than 6?
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
OK.. I’ll admit it..I’m trolling..how often does that happen? But this whole discussion is just too much fun to not get in on. The biggest difference between “shouting in a theater” and “gun control” is that there is a possibility that even if I falsely shout in a theater, there is a possibility that people will notice I’m full of it, and not even move. There is also the possibility, that despite my intent for harm, people might actually leave in an orderly and safe manner. And that no one gets hurt.
So, lets make an assumption for a moment. If I shout and everyone panics and someone gets hurt, I achieved my intended effect, which we’ll equate to me actually hitting someone if I shot a gun. But if everyone either doesn’t react and/or gets out safely, then I missed my shot. The thing is this…If i shoot a gun randomly and I hit someone, then basically, everyone ran and panicked and people got hurt. If I shot and no one got hurt…everything is ok..or is it? Wouldn’t I still be guilty of wreckless endangerment? Ultimately, the only time you are ever innocent of a crime when you shoot a gun in public is if you can prove that you were defending yourself or prove that you followed proper safety measures in a use that was also cleared officially by local and/or federal law. That’s still pretty restrictive. For the record, someone pointed out that there are millions of guns out there and only thousands of shootings. And I have to admit, that’s pretty astounding. My view of people is pretty negative in general, and the idea that that many people have guns and don’t shoot stuff up, just because or because they paid for something that they want to use/play with seems almost impossible. There are a lot of mentally deficient people out there..and even if they were only 1 per cent of the gun owners, you’d expect more deaths than that. In fact, if criminals owning guns is a problem, the number of shootings per year seems impossibly low. I really wonder how accurate the reporting and polling is, because really, if 1 % of the gun owners were bad actors, there should be like a few million shootings a year. And I feel like, really, more than 1% would be bad actors. I’m very skeptical of that. PS. I don’t believe Americans should lose the right to lose guns, but I DO believe, that we need to figure out better ways to make sure guns don’t get stolen, sold illegally, or sold to people who have clear or documented mental problems.