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Every time I get into an argument with people about the Second Amendment, they inevitably bring up the idea that the rights enshrined within the Bill of Rights have limits. And the one thing they constantly fall back on is the example that “you can’t yell fire in a crowded theater.” That even the First Amendment has limits and so we should allow restrictions on the Second Amendment, too. What they don’t realize is that they have no idea what they’re talking about . . .

The idea that some speech is so dangerous that it isn’t protected under the First Amendment is a concept that comes from the Schenck v. United States supreme court decision of 1919. Schenck was agitating against a draft based on Thirteenth Amendment grounds (the one against involuntary servitude) but did so in a way that advocated for enlisted men to disobey orders. The supreme court ruled that in a time of war, the First Amendment needs to take a backseat to the needs of the country and that Schenck needed to shut up and sit down.

That’s probably not a perspective that 70’s draft dodgers and protesters would appreciate. You know, a lot of the same people who are now advocating for more gun control.

The unanimous decision used the example of shouting fire in a crowded theater, which is where we get the phrase still in use today. However, the ruling was later revised in Brandenburg v. Ohio to mean that the First Amendment didn’t apply ONLY to speech that was promoting an imminent lawless act. And NOT when the speech that may cause harm somewhere down the road (as in Schenck). Note the use of the word “imminent.” So in the later ruling, Shenck would have been OK.

In both of these cases (the second involving a KKK leader and some hate speech on TV, where the court overturned the conviction) the plaintiff had their first amendment rights completely and totally unrestricted until the moment they decided to act. Right up until the point where they opened their yaps and formed the words inciting mutiny or violence, they were presumed innocent and enjoyed their full rights.

There were no censors standing over their heads making sure that they didn’t write anything seditious.

There was no waiting period while their background was checked before being allowed to speak.

There was no requirement to register your newspaper or blog with the government.

There was no government organization that kept a list of approved publications and required a $200 tax to move that instrument of speech between people.

These men were allowed the full exercise of their rights up until the exact moment when they decided to speak in a way that was imminently against the public interest. And, in the Brandenburg decision, even after that point.

When people say that there are restrictions on the First Amendment, they don’t understand what they’re saying. Sure, there are restrictions on what you can say, but there is always the presumption of innocence. It’s only in reaction to an act or speech that those restrictions kick in.

We should have the same kinds of restrictions on the Second Amendment. Just as with the First, you should have the full and complete enjoyment of your rights without any reservations or restrictions until you do something that proves your motives are against the public interest. Like murder, for example.

I should be able to walk down Broadway in New York City with a fully automatic grenade launcher all locked and loaded, and have it be completely legal until the moment I pull the trigger.

Up until the moment that you use a gun for evil purposes, there should be no restrictions on your rights. Just as with the First Amendment.

So I completely agree. The restrictions on the Second Amendment should be identical in nature to those on the First. That you should have complete and total freedom until you prove you aren’t responsible enough to handle that responsibility.

Because “innocent until proven guilty” isn’t just a phrase — it’s supposed to actually mean something in this country.

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  1. ah, yes, you can’t yell fire in a crowded theatre, and you can’t fire a gun in a crowded theatre. Makes sense. Not allowing people to carry a gun into a crowded theatre is akin to duct taping your mouth before you go to the movies.

    • Exactly Mr. Paine. Yelling fire in a crowded theater will most likely result in actual harm to the panicked patrons. Discussing politics (before the movie starts) will cause no harm. Using a weapon in a criminal act of violence again most likely results in actual harm. Carrying a weapon, not so much. Punish those that cause harm, not those you think might cause harm.

      • The Founders, and even the SCOTUS about a hundred years ago, didn’t feel a need to codify common sense.

        With regard to the First Amendment, blogging on a forum like this and referring to African-Americans with the “N-word” would NOT reasonably be interpreted as a crime; it’d be interpreted as the ranting of a racist fool that’d likely get him banned from the site (which it’s quite entitled to do to protect its reputation and standing).

        But suppose one is driving through a neighborhood on a warm summer evening, and upon seeing a group of young African-American males, shouts the ‘N-word” at them to taunt, and one of them pulls out a pistol and fires at you. Assume that he misses and the stray round hits some little girl, and she dies. Is the shooter guilty of murder with a firearm enhancement, meaning that at minimum he’ll spend the rest of his life behind bars? Sure…and likely you’ll go to prison as well..for INCITEMENT and probably MANSLAUGHTER. Indeed, I would at least expect for the DA to try to get your racist hiney for murder as well; on the idea that you knew or should have known that your reckless actions would reasonably be interpreted as trying to start a fight, with tragic results.

        With RIGHTS come RESPONSIBILITIES. If there needs to be a law to tell you to properly secure your firearms to prevent unauthorized use by irresponsible persons (like children), or to ensure down range safety, then you’re not the sort to serve in the “unorganized militia” as the Founders envisioned.

    • And taking it a step further, how many times per year do lunatics have to yell “fire” in a crowded theater (leading to at least a half-dozen deaths each time) before government mandates that citizens don muzzles or duct tape before entering theaters?

  2. Re: your “fully automatic grenade launcher on Broadway” example

    How do you address the very next thing that’s going to come out of their mouth? That is, words to the effect of, “A grenade launcher is much more dangerous than mere words.” You said it should be “completely legal until the moment I pull the trigger,” as it is with speech. The major difference is that when you pull the trigger, people die, effectively immediately. The same cannot be said of the person who suddenly starts screaming restrictable speech.

    I know, I know, “Fire in a crowded theatre” could lead to injury, but you go scream “Fire!” in 10 random theatres and count the number of injuries, and then go pop off 10 grenades, individually at random locations, and see how it stacks up. The potential for injury is astronomically higher.

    Please understand, I agree with the point you’re making, but I’ve been in enough of these “discussions” to know where the next step is, and I don’t know how to refute it. If I was a politician, I’d change the subject or mention “the children,” but I’m not, so I want to be able to provide a real answer.

    • Change the theater setting to the Super Bowl and you’re the in-stadium announcer about to say “There’s a bomb! They have bombs!!”

      Try that versus the grenade launcher scenario. The theater is too small.

    • Just off the top of my head, Hitler. Hitler sort of kicked off a huge war and genocide by speech. That’s really downplaying it, but still.

      • Godwin’s law…(sooner or later, someone brings up Der Fuhrer…)

        Hard that it might be to believe, Hitler wasn’t even considered the most extreme within the fledgling Nazi party, nor were the Nazis considered the most lunatic of the lunatic fringe that existed in German politics of the 1920s and early 1930s.

        Germany didn’t, and still doesn’t, have a First Amendment as we understand it, though freedom of speech is GENERALLY respected. Where Hitler initially ran foul of the law was in his ill-fated attempt to take control of the Bavarian state government (Munich Beer Hall Putsch) in 1923, which could have resulted in a life sentence and/or being deported from Germany and permanently banned. He had enough sympathizers within Germany that he drew only a five-year sentence and served but nine months; at the point where he convinced the authorities that his Nazi party would seek its political goals through the legal political process, which it DID (at least enough that by 1932 the Nazis were the lead party, though far from a majority, and when what was essentially the rest that had briefly united to keep out the NDSAP and the KPD (Communists) fell apart, Hitler was approached to become Chancellor, on the naive notion that they were hiring HIM and he’d rid Germany of the Communists, which he DID…and didn’t stop there.

        Never was there any serious discussion about banning Hitler or his Nazi Party on the idea that he was a crank and a crackpot;that if he got into power he’d lead Germany into disaster. Once 1945 came and Germany was soundly defeated and under the Four Power occupation, though the occupiers quarreled, they agreed that all vestiges of Nazism had to be stamped out. This was little issue in the Soviet Zone which became the GDR; former Nazis weren’t terribly popular with the Soviet Army nor the KPD that they re-established (but still could never win a majority in the polls, they were always part of a “Socialist” coalition as their inability to win an open election in the GDR proved an embarrassment). However, the FRG itself passed strictly anti-Nazi laws, not only to gain self-government, but also as many former Nazis had effectively “gone underground”, they feared a Nazi insurgency that would plague them, and also a repetition of the “stab-in-the-back” notions that were rampant in Weimar Germany. So to even WEAR or display any Nazi heraldry is most definitely illegal and is strictly punished, as is promoting Nazism. This extended to the point where the Star Trek “Nazi Planet” episode wasn’t shown on German television until the mid-1990s (and I believe the swastikas were digitally blurred out). Ridiculous? Perhaps, but when a group of misguided fools leads your nation to utter ruin, then perhaps you feel a need to dispense with notions of “Free Speech” that would lead to repeating history.

    • You are 100% right, but there’s a jump you’re making that presumes OWNERSHIP = ILLEGAL ACTION.

      The ACT of ownership harms no one. Just ask David Gregory about his 30rnd magazine.

      The ACT of screaming ‘Fire’ falsely has and does cause deaths: People have indeed falsely shouted “Fire!” in crowded public venues and caused panics on numerous occasions, such as at the Royal Surrey Gardens Music Hall (London) in 1856, in Harlem in 1884,[1] and in the Italian Hall disaster of 1913, which left 73 dead.

      Again, I agree with you, the POTENTIAL injuries are higher. But so is me driving my car through the theater. But that doesn’t stop me from owning a car, or driving anywhere else. The ACTION under scrutiny as to whether it should be illegal must, by itself, cause imminent lawless action. Owning AR15’s and 10+ round magazines does not produce said action.

    • I think you have the right to possess an “automatic grenade launcher” NO QUESTIONS ASKED. Every person is sovereign until they hurt somebody. Bringing a grenade launcher to a theater is going to be nixed by the property owner because you’d scare fellow customers. You need to leave your launcher at home because that is the wish of the owner and you are a guest.

      Another answer is that we already allow the most dangerous people in society to have whatever they want, no questions asked. These people use these weapons in an orderly fashion, just not against us, the “homeland”, at this time. Innocent people across the globe, not so lucky. Saddam Hussein allowed his people to have RPGs. I don’t think it was a problem until the glorious “liberation” in 2003.

      If the most dangerous element in society, the government division, has them, then we should have them.

      Now, there has to be a subjective limit. If the guy in the apartment next to you had 500 pounds of dynamite in his closet, I think you have a legitimate claim against him. For example, what if there were a fire? That could be seriously dangerous.

      I also think some true weapons of war are inherently immoral, such as nuclear weapons and biological weapons. In any claim, the grievance is between you and another individual or small group of individuals. I think it is morally wrong to nuke a city of 1 million because there are 1,000 enemy soldiers in it. We can assume no person or entity should have that kind of power, especially a government.

      In summary, I think that if individual police officers or foot soldiers can carry it, you can at least buy it and keep it in your home without any meddling from the state. This is the spirit of the 2nd amendment.

      • How about a person with reloading components or 10,000 rounds of mixed caliber ammunition?
        Michael Z Williamson’s book Freehold addresses this type of society beautifully imho. As we’ve already discovered, what constitutes a reasonable amount of explosive material varies depending on the person and the intended use. I’m playing devil’s advocate here, I can’t think of a reason that would outweigh public safety for a person to walk around with a nuclear device…until we develop portable nuclear power sources anyway. Everything is relative.

        • Instead of a novel, we should look to the Swiss citizen-soldier example of what the Constitution meant by an “organized,” “disciplined,” and “well regulated” Militia.

          “The inhabitants of Switzerland emancipated themselves by the establishment of a militia, which finally delivered them from the tyranny of their lords.” ~Representative Jackson, first U.S. Congress, when it met and turned to defense measures in 1791

          It was successful then, it’s successful now.

          It was even successful at defending the Swiss nation while surrounded by the Axis Powers. And it costs 1/7th of the present Standing Army, which is a bunch of Mafia-enforcement thugs for Wall Street that act as economic hitmen to extract wealth from other countries, which has been the reason for terrorism.

    • “inciting imminent lawless action” is the benchmark. Brandenburg vs Ohio was about an armed KKK rally with speeches calling for revenge against African Americans and Jews. That was found to be not substantial enough to either forbid them from holding such rallies or taking their guns away.

    • It depends on whether the grenade launcher is considered arms or ordinance. Note, the Second Amendment only cover the arms that a infantry solider would carry. If the grenade launcher is considered ordiance it is not covered by the Second Amendment.

      Now for the argument that the draft violates the 13th Amendment. The authority to draft citizens in the defense of their country is found in the dependent clause of the Second Amendment, i.e., “A well regulated Militia, being necessary to the security of a free state…” All citizens in the age bracket defined in statute are members of the unorganized militia. The draft is nothing more than a call up of this unorganized militia. The reason that the right to bear arms shall not be infringed is still important today is that a citizenry well versed in the handling of firearms can be more quickly trained and fielded. A person who can shoot a 22lr can quickly learn to accurately fire an M-1, an M-14 or an M-16/M-4. He can also assist in the training of the part of population that has never fired a gun prior to his call to service. During the Second World War the US Army had many tactical and organizational shortcomings but the one thing that our enemies will tell you is that Americans were deadly opponents when it came to a firefight.

      • The right to keep and bear arms is an unalienable right that pre-exists governments and the arms are not limited in any way. There are uses for arms other than defending the security of a free state. The Second Amendment codifies part of the right to arms, the arms that are necessary to the security of a free state. I don’t see the phrase “the right of the people to keep an bear arms that an infantry soldiers would carry shall not be infringed” in my copy of the Bill of Rights. Maybe I have an old copy or something. Because a government may wage wore on its people, those people have the right to all weapons of war that might be needed to fight of such a government.

        • In 1787 weapons were divided into Arms and Ordinance. Arms were things that an indvidual soldier would carry and ordinance was a big thing like a cannon.

          Arms were pretty basic back then – the Brown Bess Musket or a long rifle. They did not have the variety of long guns and pistols that we have today.

          Arguably the only weapons covered by the Second Amendment would be individual weapons carried by regular troops — the select fire versions of the M-16/M-4 and the M-9 handgun. A more broad interpretation would be any select fire rifle or carbine using the NATO 5.56 Cartridge and any 9mm full size automatic. If we really believe that Second Amendment is about defense and not hunting this interpretation is more valid than the one used by the gun grabbers.

          Is a grenade launcher arms or ordinance? Beats me.

        • I’d call a grenade launcher ordnance, because it’s indiscriminate. You may be able to aim where it lands reasonably well, but when it pops, it still hits everything within range.

    • This is nitpicking, but if you would be hard pressed to get a most 40mm grenades to detonate inside a theater – not enough room to arm before impact. Just sayin’

    • Perhaps overly pithy and cliche, but the pen is mightier than the sword. That is my response. Given the number of people killed by governments in the 20th Century, I’d say that speech can be far more dangerous than individuals possessing weapons.

      • Bad speech can be freely countered by “good” speech…a bad guy with a firearm can and is often well-countered by GOOD GUYS with GUNS. Just ask former Texas state Rep. Suzanna Hupp, who lost her parents in the 1991 Luby’s Cafeteria massacre in Killeen. Her sidearm was in her car 100 yards away, but she left it there for fear that IF caught with it in the restaurant, she’d get in bad enough trouble to lose her chiropractry license. Ms. Hupp felt that had she been able to properly exercise her 2A rights that she would have better been able to defend her parents, she was as helpless to protect them as were all the other patrons. Her point in her 2A activism was that she should not have had the choice of either armed defense of herself and her loved ones versus risk of prosecution for an unjust and unconstitutional law. I’d prefer that had she taken her pistol into the restaurant with her and produced it from her purse to defend her folks that the Bell County DA had tried to prosecute her for a firearms violation; the uproar over a “little gal” protecting herself and her aged parents would have spoken volumes!!

  3. Please clarify. You said, “However, the ruling was later revised in Brandenburg v. Ohio to mean that the First Amendment didn’t apply ONLY to speech that was promoting an imminent lawless act. And NOT when the speech that may cause harm somewhere down the road (as in Schenck). ” Did you mean “…the First Amendment applied ONLY to speech…”?

    • The construction Nick used was a little awkward, but correct.

      …the First Amendment didn’t apply ONLY to speech that was promoting an imminent lawless act.
      …the First Amendment ONLY didn’t apply to speech that was promoting an imminent lawless act.
      …the First Amendment ONLY didn’t apply in cases where speech was promoting an imminent lawless act.
      ……the First Amendment didn’t apply ONLY in cases where speech was promoting an imminent lawless act.

      They all mean the same thing.

  4. When people say that there are restrictions on the First Amendment, they don’t understand what they’re saying. Sure, there are restrictions on what you can say, but there is always the presumption of innocence. It’s only in reaction to an act or speech that those restrictions kick in.

    You’re wrong. Look at the requirement to obtain a permit to protest as a classic example, it is pretty much the same as paying the $200 NFA tax.

    • It is sufficiently different. Assembly in a public space is regulated for efficient use of shared resources, like licensing for radio spectrum and logging rights on federal land. Not necessarily the same as speech.

      • How does a permit make things “efficient”? Logging rights and spectrum are entirely different as it is the government selling off public property in the interest of growing the economy. The closest you come to what you said would be licensing HAM operators, but certainly not things like the FCC’s spectrum auctions.

        • You can absolutely protest. You can gather. You can have speeches. But if you want to use public space, you need to get approval to make sure that the space is not in use at the time. Makes sense to me.

          Should the approval process be fair? Absolutely. But it requires regulation due to the shared nature of the space.

        • But if you want to use public space, you need to get approval to make sure that the space is not in use at the time…

          Thats not the way it works here in Illinois, as you are prevented from exclusively using the space which the permit is attempting to regulate.

          That the public health, welfare and safety of the community require that the movement of vehicular traffic on such roadways be lawfully conducted with a minimum of disruption… It is unlawful for any group or organization or any individual acting with such group or organization, to conduct or participate in any march… on roadways unless such march… is limited to such numbers as, in the opinion of the principal law enforcement officer, will not obstruct pedestrian or vehicular traffic in an unreasonable manner.

        • As I previously mentioned, the law is setup to prevent traffic being impeded, not the regulate the use of non-roadway public space. The law is setup to specifically hider protests, as it is not regulate events on private property which would be just as if not more likely to impede roadways, such a stadium event.

          I wish the edit window here was longer, or I put more effort in to my post before I submitted it, because I didnt phrase this in the best way, but I think you get the idea I’m trying to convey.

        • yet you have a constitutional right to free speech and assembly, but not to be unimpeded in driving your car down a road. If Nick wants to walk down Broadway with a grenadelauncher I want to hold a rally and speech on brooklyn bridge whenever I want without any restrictions or permit requirements.

    • And our Constitution says ‘Congress shall have the authority to levy taxes for the purposes of raising revenue.’ Only. The supreme court has ruled it illegal for taxes to be enforced for punitive or disincentive purposes; they can’t (legally) charge $200 to dissuade someone from registering something.
      You’re forgetting something- you can’t yell ‘fire’ in a crowded theater UNLESS THERE’S A FIRE. Just like you can’t murder someone, but self-defense is a-ok.

      • The supreme court has ruled it illegal for taxes to be enforced for punitive or disincentive purposes

        See Sin Taxes. And if this were so, wouldnt Phillip Morris and other companies be suing the Cook County and NYC for their outrageous punitive taxes? It costs over $10 a pack here in Chicago for Marlboro Lights.

        • “wouldnt Phillip Morris and other companies be suing the Cook County and NYC for their outrageous punitive taxes?”

          The unfettered power and resources of the government are above even the resources of large corporations. Thus, it becomes easier for the government to infringe the rights of people and harder for the people to fight back. That is why we find ourselves in this situation. We were too cowardly to limit the government to the confines of the Consitution. As long as they allow us to have beer in the fridge, mind-numbing shit on television and gas under $15 per gallon, we just don’t give a damn.

      • the reasoning behind those taxes is usually to generate revenue equal to the expenses generated by having the paperwork processed

    • They can also prevent assemblies on private property with things such as fire codes (max occupancy) and noise ordinances.

    • A permit to hold a rally on public property has the legitimate purpose of ensuring that the property can still be used for its intended purpose. Holding a rally on the steps of a courthouse to voice one’s opinions about a controversial trial being held there might have the effect of interfering with the lawful business of the court(s).

      However, such permitting requirements are often used to quash dissenting political views that have legitimacy; indeed, often they’re protesting actions of the ruling power that are illegitimate and/or abusive.

      This was well demonstrated by the infamous case of the then American Nazi Party asserting that it had a right to march in Nazi regalia in the Chicago suburb of Skokie, IL, in the late 1970s…as many survivors of Nazis concentration camps lived there, this was seen as a deliberate act to incite a riot and not a legitimate exercise of free speech which even Nazi scumbags have. Ironically, it was Jewish attorneys working for the ACLU which asserted their right to march; the issue was decided in the Nazis favor but they ended up doing their pathetic march elsewhere, where they were largely (and fortunately) ignored.

    • The movie going public decides, by patronizing his films, or NOT, what he “gets away” with. The First Amendment isn’t only about expression that you and/or I LIKE, its exactly for the expressions that you or I (or both of us) DON’T LIKE.

  5. Also the most misquoted, you cannot falsely shout “fire” in a crowded theater and then use your first amendment right as protection against being sued for injuries that result.
    So you legally can shout fire in a crowded theater, even if there is no fire, you are just liable to criminal prosecution if someone is trampled to death in the rush to escape.

  6. Not to be a wet blanket, but there are brandishing laws for a reason. A gun doesn’t need to be fired to be used in a non-legal manner, in fact I would guess most muggings or store robberies with a gun occur without a shot being fired but with the weapon being brandished. So while I agree we should be allowed to own grenade launchers, that wouldn’t mean we could carry them everywhere, since some locations would create a danger, not by the gun but by the location itself… Say you walked into a bank holding that grenade launcher? So if others view your actions as threatening it becomes illegal, even if you don’t mean it that way.

    • I agree completely. The article loses much of its power when it asserts that pulling the trigger is where the line is crossed. Walking down the street with the launcher can reasonably be seen to expose passersby to imminent harm. A holstered handgun, not so much.

      Using hyperbole hurts the argument.

    • “So if others view your actions as threatening it becomes illegal, even if you don’t mean it that way.”

      This is nothing but a heckler’s/rioter’s veto.

      • A promise of LEGAL recourse is not a threat.

        People do not “threaten” to call the police on vandals, they ‘warn’ the vandals of the legal consequences.

        The general public is misusing the word (in a legal sense).

  7. Nick,

    I agree with you in spirit, but Brandenburg did NOT revise the Schenck series of cases. In Brandenburg, the court decided to go in a different direction but never expressly revised or overturned Schenck. Schenck, consequently, is still good law and federal courts to this day apply the Clear and Present Danger test instead of the Brandenburg doctrine. It’s a strange bubble in Constitutional law.

  8. If you actually believe that there is fire and a theater and you yell “FIRE!” in a theater, I don’t believe you have broken the same law. Intending to cause panic is not the same as intending to report on actual events.

    They say the greatest burden a prosecutor faces is proving the ‘Intent’ of the accused to cause harm. I believe that to falsely yell fire in a crowded theater is a declaration of that intent. But it is the threat itself that can be ‘illegal’, not the words used to communicate that threat.

    If words became illegal under certain circumstances, there is no reason not to prosecute actual reports of danger the same as fictitious reports, as they CAN cause just as much panic and injury as false claims. THAT would put the final nail in the coffin of our ‘Freedom of the Press’.

  9. Up until the moment that you use a gun for evil purposes, there should be no restrictions on your rights. Just as with the First Amendment.

    This is where your argument becomes subjective–define “evil purposes”. Was Adam Lanza’s mother guilty of “evil purposes” in teaching her mentally disturbed son to load and shoot firearms? What about people in general who leave firearms within relatively easy access of people who are not trained in their proper use? You could argue that both instances are merely examples of foolishness, but foolishness and evil CAN co-occur. I would say that in both instances, legitimate gun owners (under the second amendment) relinquished their right before firing a shot.

    • Only if Lanza’s mother knew or reasonably should have known that she was abetting his plans to “go postal” and kill kids and teachers in an elementary school would she be criminally liable. We’ll never know, because her son murdered her as well and finally killed himself. Shame he wasn’t the first and last victim of his psycopathy.

      The trouble is, there were no prior incidents or trouble with the law nor mental health incidents that would have reasonably given the authorities cause to act. Toxicology reports indicate that Lanza wasn’t drunk or “on something”. Furthermore, that Lanza destroyed his PCs hard drive indicates that he’d extensively planned what he did. This is the action of someone that, for whatever reason (demonic possession, anyone?) has deliberately chosen evil. Many hundreds of thousands, if not millions of young persons, suffer from depression or emotional withdrawl, yet the overwhelming majority do not resort to violence, and certainly not mass murder. Abrogating the 2A on the basis of a lone nut that snapped is poor law; the emotionally charged shrill calls to do so were exactly the sort of thing the Founders understood would be used as lame excuse to disarm the law-abiding and peaceful citizenry.

  10. “The Congress shall have Power … To provide for organizing, arming, and disciplining, the Militia.” ~Article 1, Section 8, U.S. Constitution

    “A well regulated Militia…” ~Second Amendment of the Bill of Rights

    There is nothing in the Constitution about “organizing” and “disciplining” a “well regulated” Press or Speech.

    But there is distinct provision in the Constitution for “organizing” and “disciplining” a “well regulated” Militia.

    Unfortunately, the lovers of the Standing Army have eviscerated the purpose of the Second Amendment, i.e., to PREVENT a Standing Army.

    “What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty….” ~Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment, I Annals of Congress at 750, August 17, 1789

    You can keep banging-away about an absolute individual right, and indeed it is, but you’re ignoring things in the Constitution that are there, but you don’t want to admit, that specifically address the reason for that individual right.

    By supporting a Standing Army, the Right have a eviscerated militia, unnecessary to the defense of the nation, and that gives much power to the Left who wants to disarm such an unnecessary, undisciplined, unregulated armed horde.

    It’s time to support the COMPLETE 2A; it will make the 2A stronger, it will make our nation safer, and will get rid of the warmongering profiteers who make War a Racket and cause harm to innocents, as Major General Smedley Butler, USMC, put it so succinctly.

    • You really are a one-hit wonder with the Elbridge Gerry and Smedley Butler quotes, aren’t you? I’m pretty sure upwards of 50% of your posts have contained one, the other, or both. Not only are they tiresomely repetitious, they’re not even topically on point in this case.

      • He’s a 1 trick pony, Matt. Now he’ll scream we’re both pissing on the constitution and support difi cause we dared to say something he doesn’t agree with.

        And for the record. In a world with near instant lines of communication, in the military sense, with countries like China and Putin’s Russia and let’s not forget places like North Korea I want a professional standing army.

        • Keep whining, just like DiFi does about the 2A. You anti-2A ilk who don’t support the complete 2A just as intellectually bankrupt as she.

        • Switzerland seems to do ok without a standing army. No one bothers them cause they don’t stick their nose in other people’ s business.

      • If you don’t like the purpose for which the founders wrote the 2A, then it seems the Leftists in Congress have lots of company.

        You’ve been as corrosive to the 2A as those you blame. Time to man-up, Matt, and understand the 2A’s intent.

        • Yeah, advocating for the 2A is a “one-trick pony act.” Uh, huh. Do you get your talking points from the Brady Bunch?

          You sure as hell can’t seriously discuss a single thing I’ve said. So you run a smear campaign against me, the only advocate of the COMPLETE meaning of the 2A.

        • Wha…? What in the holy hell are you talking about? Are we speaking different languages?

          Where did I say I didn’t like the founders’ purpose? How exactly does pointing out that the horse is dead and you might want to stop swinging make me a Leftist? What kind of logical contortions did your fever-addled mind have to go through to turn my comments into “corrosive to the 2A?”

          I understand the purpose of the 2A. I understand what you say the purpose is. I didn’t even say I disagreed with you. I just made the observation that your rote repetition of the same information is tiresome, and you should broaden your approach. Those quotes and the points you made around them sounded good and made sense the first couple times, but now, after easily a dozen repetitions in the past four days, it’s just noise. You’ve gone from the guy who sends me an astute, informative email to the guy who stands on the corner chanting the same ten word sentence over and over. It’s noise, and it’s not helpful, and it makes you look like a loon.

        • People selectively piss and moan about that which they don’t like, Mr. Equivocating Weasel boy.

          And now I’m a loon for tenaciously advocating for the 2A, huh?

          Like I asked before, do you get your talking points from the Brady Bunch?

        • I see you answered none of my questions, you just threw a couple more ad hominems at me. Well, I guess “at me” because you propped up your strawman with “people.” But you really meant me.

          The funny thing is, I still haven’t disagreed with your message, you colossal imbecile, only its delivery.

          I have now, in the space of 30 minutes, been declared a corrosive Leftist un-manly equivocating weasel-boy who disdains the true meaning of the 2A by someone whose points I largely agree with. I can’t take any more abuse before I cry, so I’ll withdraw from this conversation and you can declare yourself the winner. With friends like this, I don’t need enemies.

        • ivy as ive rebutted several times,

          a army can be raised. whether its current configuration is constitutional or not is debatable (and i would agree strongly with you that its not), however, you seem to think the 2nd means NO standing army, which is incorrect. If you dont mean this, you sure as hell are implying it.

          and stop with the ad hominem attacks. when you resort to personal attacks you dont give the opposition the opportunity or incentive to ascertain your viewpoint.

          and im aware of who major general smedley butler, united states marine corps, is. ive posted his quotes several times on here over the past couple months.

        • The Mike twins, B and I, take the two opposite extremist view of the Constitution. Mike B thinks the Militia clause obsolete because we don’t do that way anymore. (We haven’t done it that way since the Black Hawk wars.) I sort of explained why B-Mike was wrong in my post above and now I will finally deal with I-Mike in the current the thread.

          I-Mike contends that the Constitution requires that the Army be disbanded after two years based on Article I, section 8. However, as stated in an earlier thread, the two year rule refers to all government appropriations and not only defense. The two years is a reference to the term of Congress.

          I-Mikes two year claim is ridiculous on its face. The only reference frame that the founding fathers had on the length of a war are the Seven Years War (1756-63) known in North American as the French and Indian Wars and the Revolution itself (1775-83). Both wars exceeded two years by a long way. I think we can assume that the founding fathers believed that wars could last longer than two years. In would be ahistorical to interpret the Constitution as requiring that the Army be disbanded after two years. Let’s apply that logic of the two year rule to WWII . We raised an Army beginning in summer of 1940. That would mean that we would have disbanded the Army just as we were about to go on the offensive in both Pacific and European theaters. I guess we would have to raise another army which would have been forced to disband on the beaches of Normandy in the summer of 1944. You can see how this would not meet the framers view on securing the freedom of a free state. I-Mike is doing two things wrong. He is deliberately misreading the Constitution and he has no historical insight into the founding fathers’ worldview other than a couple quotes out of context.

          The founding fathers did not like standing armies but their experience in the world of first two decades of the Republic which took place against the background of the French Revolutionary and Napoleonic Wars forced them to change their views on the necessity of a standing army. I-Mike has never answered the question that pose before: do he think that Jefferson “pissed” on the Constitution when he accepted the notion of a standing army.

          (note: I have to make a tee time so I am sure their are a few of my usual typos in here.)

        • Oh dear, I hurt the tender feelings of a bunch of crybabies. Do you need mommy dearest to dry your tears?

        • forced them to change their views on the necessity of a standing army

          Cite? (this should be fun)

          Do you get your talking points from Diane Feinstein? I could swear she says that modern circumstances has forced her to change her views.

          Oh wait, the Swiss STILL have a Militia that successfully defends their nation. Did you forget that while you’re tripping over yourself trying to eviscerate the Constitution with the “modern times” tripe?

        • Evidence? How about the standing Army that existed during Jefferson’s term? Madison, the author of the Second Amendment, didn’t disband it. So I think it is safe to assume they recognized the national need for standing military force after all. Now go away. You are giving the gun grabbers ammunition.

        • Ah, you don’t have a cite. All you have is evidence of the Constitution being ignored, which politicians have been doing since the ink dried.

          By your way of thinking, the Clinton era gun ban is just fine, because, hey, it existed!

  11. The next time everyone here has a conversation with an anti-gun zealot, make sure you remind them that the 2nd Amendment promises a CIVIL RIGHT, cuz i’m not sure they realize it.

    They see themselves as defenders of ‘Civil Rights’, but ignore the fact that the right to bare arms is #2 on the Bill of Rights. They demand compromise on THIS civil right, but they are outraged at suggestions that we “compromise” on any other basic rights guaranteed by the constitution.

    Should we “compromise” on slavery?

    Should we “compromise” on due process”?

    Which exactly, if any of our civil rights, are anti-gun types willing to “compromise” on, and SURRENDER 50% of their freedoms to meet the opposition half-way?

    • Then we have a civil right to have a “disciplined” and “organized” and “well regulated” Swiss-model citizen-soldier Militia, instead of being subjected to the expense and tyranny of a Standing Army.

      It’s time to support the COMPLETE 2A.

      “The inhabitants of Switzerland emancipated themselves by the establishment of a militia, which finally delivered them from the tyranny of their lords.” ~Representative Jackson, first U.S. Congress, when it met and turned to defense measures in 1791

      Let us emancipate ourselves of the inherent “tyranny” of a Standing Army once again.

      You are for civil rights, right?

    • I too support a “right to bare arms”, but it’s downright silly in many parts of this country in January.

  12. In the McDonald v. Chicago opinons, four justices stated due process is the standard for decisions. One justice stated Privileges and Immunities, which is the standard for speech.

    Legal scholars argue that because there is no majority only a plurality, there is no standard. Which is why the courts are using different standards, and the cases all are turning out different.

  13. As for gun ownership under 2a pistols, rifles, even machine guns, or more correctly full auto should be allowed. Anything our citizen police can have any citizen’s should be able to have.

    However, I draw the line at things like RPG’s, claymore’s and NBC weapons. These should not be in residential neighberhoods.

    • So you and DiFi differ only on the caliber of arms to be prohibited.

      Geesh, I thought the 2A was to be interpreted as only an individual right–and now you’re impinging on it.

      The reason for your confusion is because you don’t support the complete 2A.

      • Congratulations. You aren’t just the most obnoxious commenter to show up in recent memory, you have earned the title of King Jackhole. Quite an accomplishment considering some of the personalities that grace these discussions.

        Your antics are actively detracting from the value and enjoyment I derive from TTAG. I believe this is true for others as well. Kindly moderate your tone or STFU.

        Feel free to reply; I will not respond, as I do not feed trolls.

    • I would say that the only issue with regard to private ownership of RPGs, Claymore mines, and Nuclear, Biological, and Chemical weapons is that the owner stores them in a manner that ensures legitimate concerns of public safety. For example, just because some nutcase stole an M-60 Main Battle Tank, and with its 54 tons went on a rampage in the streets of San Diego in 1995, doesn’t give cause to prohibit me from purchasing one (my ex wife who enjoys my considerable alimony payments would no doubt wonder where the hell I’d gotten the money), the issue of whether it needs to be “de-militarized” (I say it shouldn’t, but I’ll pick my battles) notwithstanding. Or, for that matter, extensively regulate and require me to “prove a need” for a bulldozer (again, my ex, should I acquire one, might bring action to get her alimony increased on the basis that I have money for expensive ‘toys’), on the shaky justification that some idiots have used them to commit mayhem.

      Please support my right to own and operate heavy, armored vehicles that chew up the ground and consume copious quantities of diesel fuel!

  14. Yelling “fire” in a crowded theater is not speech it is an act. It is an act designed to cause injury and death to others. It is to the first amendment what pointing a gun at someone and pulling the trigger is to the second.

      • I refer to context as the “totality of the circumstances.” Of course, justice and the law are two different things, and I’m sure you have a healthy appreciation for that.

        That’s the beauty of not taking an enforcement action, or merely issuing a warning. I wouldn’t want to do my job without the benefit of discretion.

      • Methinks Chief Justice Holmes meant shouting “fire” to incite a stampede in a crowded theater, which might result in injuries and possible deaths, just for “kicks” or other sicko motivations. Witness what happened just due to collective impatience at a Who concert in Cinncinati back in 1979…

  15. Hypothetically, what would keep one NYC hate/terrorist group amassing one-hundred grenade-launcher carrying members from quietly and legally walking into the crowded neighborhood of another unarmed group they hate until the moment they go ballistic? I’m fine with law abiding good competent citizens walking around with a gun for self-defense. I’m am against people having the right to legally walk down Broadway in NYC with a grenade launcher until that person starts using it.

    • Aharon … nothing stops such a group from doing what you described right now. They might have to conceal their grenade launchers but they can nevertheless do it.

  16. “… you should have the full and complete enjoyment of your rights without any reservations or restrictions until you do something that proves your motives are against the public interest.”

    Even this position is the wrong approach to rights. How in the world can anyone objectively establish that a person exercising their rights is against the public interest? And it is even more difficult to establish that a person’s motive for exercising their rights is against the public interest. I won’t even ponder how someone determines exactly what is the public interest.

    • There was a time that the “public interest” was denying rights to minorities. That was wrong then and always will be wrong.

      Rights are not subject to public interest. Rights are only subject to respecting the rights — not the feelings or interests — of others. If there is ever a conflict of rights, the simplest resolution that preserves everyone’s rights is the correct resolution.

      Example: a citizen that wishes to demonstrate in front of City Hall can demonstrate just as effectively on the sidewalk or the road. But demonstrating on the road interferes with the right of citizens to drive down the road whereas demonstrating on the sidewalk does not. So the citizen simply demonstrates on the sidewalk and no one interferes with anyone’s rights.

      The only time there is conflict is when one party WANTS to interfere with the rights of another. We call that BULLYING. Gun control and citizen disarmament is nothing more than bullying, plain and simple. It may be on a large scale and cloaked in all sorts of arguments; it is bullying nevertheless.

    • Exactly.

      Because if we did make a “public interest” test on the restriction of rights, then we’d ban publication, dissemination, discussion and study of Karl Marx’s twaddle, seeing as 60+ million people have been killed by adherents of this grifter’s scribblings.

      60+ million is a pretty large pile of stiffs. I think we could objectively agree that it is the largest pile of stiffs killed in the name of an ideology in human history, and therefore is a malum in se and worthy of prior restraint.

      • That’s the basis for laws in OTHER countries that ban promoting Nazism or “Denying the Holocaust”…the idea is that the obvious track record of Nazism, with deaths in the tens of millions, is not one that these countries, Germany especially, want to repeat, so our notions of “Free Speech” are meaningless to THEM. Before we judge them harshly, although we well-participated in that war, being the “Arsenal of Democracy”, the toll of our ‘boys’ was less than 300,000 in the European Theater of Operations (ETO), I believe, less than the number of Soviet tankers that perished in their T-34 tanks ALONE, hence why the song “March of the Soviet Tankmen” cynically references burning to death in their mounts! We have the luxury of tolerating such misguided and downright offensive and obnoxious displays of Nazism because we didn’t experience the horrors of what their satanic ideas wrought in OUR country.

  17. Absolutely, you can and should yell “FIRE!” in a crowded space. When there’s a fire. You’re taking action to guard against loss of innocent life.

    How might this apply to gun ownership? Hmm, I wonder.

  18. Piers Morgan would love to broadcast your statement that, “I should be able to walk down Broadway in New York City with a fully automatic grenade launcher all locked and loaded, and have it be completely legal until the moment I pull the trigger.”

  19. As a former draft dodger, I REALLY resent being compared to gun-banners. I’m not going to hold my breath waiting for an apology, however. I objected to being required to kill folks I had no beef with, just as I now object to those who would limit my constitutional rights.

    I have a right to expect better.

    • William, you will always be a draft dodger; you can’t just push that aside, You could have been a medic, a mechanic or ‘Mine Removal Technichian’ and not have to kill anyone, Poor excuse for blatant cowardice. How was Canada or wherever it was you fled.

  20. A “reasonable” restriction on the Second that takes away our semi-automatic rifles would be like a “reasonable” restriction on the First that doesn’t allow anyone to say anything negative about our government. “It could lead to protests and instability. We’re all so much safer if the government is never questioned and the people just accept it. You still have your freedom of speech. These restrictions are for the good of society as a whole.”

    • Research the Alien and Sedition Acts of 1798, and you’ll get an example of “reasonable” restrictions on 1A activity, and this by the same group that wrote the Bill of Rights! Fortunately, Jefferson was elected President in 1800, and he let this blatant attempt to abrogate the Constitution lapse into obscurity.

  21. Nick you are only partially correct. Some laws are preemptive and you had better know what they are. The injunction that you may NOT yell “FIRE” in a crowded theater is a preemptive piece of legislation. Common sense is the ‘common’ denominator. That one small piece of your argument, “Walking down Broadway…” is pure nonsense. If i as an old retired Military man, saw you, I would immediately take you into custody, if you resisted, I’d blow yoyr foolish head off with my CCW a 1911 A-1 Colt, .45 Cal Ace.You see, son there exists a perception of intent and that does not bode well for society. A militia by definition is not set in stone, It may be simply, every person in a community willing to fight for their God-given rights; therefore The Second Amendment properly addresses the issue but you may not extrapolated from the Constitutions wording that you have carte blanche liberties.
    Common Sense is the First consideration. not all this name calling and twisting of the meanings of words.

  22. The comparison between free speech and having a gun is much too simplified in this article and the comments that follow it. Leaving hypotheticals aside, guns have PROVEN to do more immideate harm to LIVES than speech… I just dont see the value of comparing such different things.

  23. Speech market isn’t propped up by an enormous defense budget.
    I don’t understand what you are saying by “imminent lawless act.” If a police officer thought that you were about to rob someone or something while you are walking down the street with your grenade launcher, he should be able to arrest you. And in my opinion any gun that is loaded is an imminent lawless act. So…

    • “And in my opinion any gun that is loaded is an imminent lawless act.”

      I don’t understand. You mean the mere fact of a gun being loaded is grounds for arrest? Does that include police officers? I mean after all, their guns are loaded every time you see them in public. Or are they somehow set apart? If so, why?

    • THat would negate a CCW, sir? ANY “loaded” gun? Kinda defeats the purpose.

      Now, if I saw some deranged fool with an AR-15, “locked and loaded”, waving it about, yes, I’d consider it quite reasonable for the police to stop him, and at minimum disarm him until they ascertain that he wasn’t about to go off on a shooting spree, if not draw their own service weapons, and shout, “Mister, place that piece on the ground and back away from it!”. Those that saw what happened to GySgt Hartmann (late R. Lee Ermey) when “Gomer Pyle” has his M-14 in the head, “locked and loaded”, with a crazed look on his face, know full well how that went for the dear Gunny.

      Someone having an AR-15 in the trunk of his car, however, is another matter. Under ordinary circumstances how the public safety aspect could be invoked escapes me.

  24. To the author,

    Your argument would only begin to be slightly less illogical as a result of either of two fictional presumptions. 1. That the second amendment dealt primarily with the right to fire arms as opposed to bearing them. (Or) 2. That the first amendment dealt with some sense of the right to abdtractly posses speech as opposed to using speech.

    You’re short comings are clearly a result of you falsely believing either of these imperatives to be true; unfortunately for you, neither are.

  25. You can’t run into a crowded building and yell fire, an argument used by most people saying rights must be and can be controlled, even free speech.

    Last I checked LYING wasn’t protected under free speech! In fact if it was think of all those people who lie under oath who would start saying they were exercising their right to free speech? Anyone who says that yelling fire in a crowded building is a control of free speech is an idiot!

    PS if someone does yell fire in a building, is there anyone but me who looks and smells for smoke?

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