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Absolutism, The First Amendment, and the Second Amendment

Posted by Peter Brian Barry on

Peter Brian Barry

Peter Brian Barry

In his second inaugural address, President Obama said Americans should not "mistake absolutism for principle." That distinction drew the ire of Wayne LaPierre, President of the National Rifle Association, who saw this as an attack on the N.R.A. and gun owners who believe that the Second Amendment to the Constitution provides an absolute right to bear arms.

In response, Mr. LaPierre urged "our president to use caution when attacking clearly defined absolutes in favor of his principles," Continuing: "When absolutes are abandoned for principles, the U.S. Constitution becomes a blank slate for anyone's graffiti."

Absolutism clearly means different things to different people. Does the Second Amendment guarantee an absolute right to bear arms?

We might learn a thing or two about the Second Amendment and its guarantees by reflecting on the First Amendment and its guarantees. Despite its language suggesting that "Congress shall make no law… abridging the freedom of speech" the First Amendment doesn't guarantee the right to say just anything nor to say it in just any circumstances.

There are all manner of speech acts that are legally prohibited consistent with the First Amendment guarantee of free speech; for example, obscenity, defamation, "fighting words," incitement, and so on.

And a cursory familiarity with First Amendment law is enough to know that circumstances and context matter too: yelling "Fire!" in the privacy of one's home is one thing, and yelling it in a crowded theatre quite another. And not only is this a record of how things are in fact; almost all of us agree that this is how things should be.

And keep in mind, if there is any Constitutional guarantee that is essential to the proper functioning of a democratic state, it is the guarantee of free speech. Even that essential freedom is not—indeed, has never been—confused with the absolute freedom to say what one wants whenever and wherever one wants.

So, it is somewhat surprising that I am told so often that things are different with the Second Amendment—that it, unlike the First Amendment, does confer an absolute right. Here too, despite its language suggesting that "the right of the people to keep and bear Arms, shall not be infringed" the Second Amendment doesn't guarantee the right to bear just any arms one chooses.

So says Supreme Court Justice Antonin Scalia, author of the controversial 2008 District of Columbia v. Heller decision that struck down a Washington D.C. ordinance that prohibited registering a handgun in Washington D.C.

Writing for a bare majority, Scalia held that "Like most rights, the right secured by the Second Amendment is not unlimited," and that it is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

The Heller majority also affirmed that "The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

Similar kinds of gun control measures that passed this Court's scrutiny included the prohibition of concealed weapons and outright bans of some kinds of arms—for example, machine guns and sawed-off shotguns. What's more, once things are put in these terms, most of us agree that that this is how things should be.

All of us—you, me, President Obama, and Wayne LaPierre—are in favor of some kinds of gun control; just about everyone thinks that felons should not be allowed to own guns, that certain kinds of weapons and ammunition shouldn't be possessed by private citizens, that various kinds of registration and record-keeping are legitimate.

Obviously, many of us disagree, often passionately, about what kinds of gun control are legitimate. But that just makes my point. Talk of absolutism in the context of the Second Amendment is a red herring and distracts from principled conversation about what kinds of gun control really are legitimate. On with it.

Opinions expressed here are those of the author and do not necessarily reflect the views of Andy Rapp, Q-TV, Delta College, or PBS.

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Currently Speaking host Andy Rapp

Veteran journalist Andy Rapp has been hosting Currently Speaking since 1999.

Each week, he's joined live in the studio by journalists, academics, and experts. Along with viewers at home, they tackle the local, national, and global issues that matter most.