On the Second Amendment

Before recent events intervened, I was preparing to observe the anniversary of the British Declaration of Rights on December 16^th. This document, drafted by John Locke, includes several provisions that would later appear in the American Bill of Rights. Among these are a prohibition against government quartering troops in private homes, freedom of speech, and the right of citizens to bear arms.

Thomas Jefferson believed that the 2^nd Amendment right of citizens the right to bear arms was a means of protecting the people against tyranny. Yet, a state of tyranny exists. We know this because the right of habeas corpus has been suspended, citizens no longer enjoy equal protection under the law, and the two major political parties have effectively seized control of the voting apparatus. Therefore, gun ownership has not proven to be an effective safeguard against tyranny. 

The Newtown tragedy; May God help us

In the last few years, the most notable instance of a private citizen using firearms as a political instrument was the shooting of Gabrielle Giffords. There has been a recent spate of unarmed black youths being shot by angry white men, and this may be read as political. Thus, as a practical matter, the use of arms in citizen politics has clearly been to the detriment of the public good. It is the instrument of would-be tyrants such as John Wilkes Booth and Lee Harvey Oswald, men who refused to accept the will of the people, and killed democratically elected heads of state. 

Thanks in part to lobbying by the National Rifle Association and the gun manufacturers’ lobby, the 2^nd Amendment has become a sacred cow in our society. Few politicians dare to propose placing any restrictions at all on this right. Now, to put this in perspective, consider that many sensible restrictions have been placed on the irresponsible use of speech. 

In 1919, the Supreme Court decided that freedom of speech could be abridged if the speech poses a clear and present danger. A trace memory of this historical moment lives on in the memorable phrase, “shouting fire in a crowded theatre.” It harms both the public good and individual expression if speech is allowed to cause physical injury. 

In 1925, the Brandenburg test was applied to speech. If speech openly encourages or incites violence, it is not protected. In the decision New York Times v. Sullivan, it was decided that libelous speech motivated by malice or a reckless disregard of truth is not protected by the First Amendment. In 1973, the court applied the Miller test. Speech is not protected if it appeals to prurient interests – that is, morbid, disgusting, or offensive to community standards of decency. According to the Lewis test of 1974, “fighting words” that are abusive, insulting, and likely to elicit an immediate violent response are not protected by the First Amendment.

Sometimes, the 1^st and 2^nd Amendments collide. In the 1966 case of Watts v. United States, an 18 year old named Robert Watts was arrested when he said, in connection with the draft, “If they ever make me carry a rifle the first man I want to get in my sight is L.B.J.” The court decided that, since this was not a credible threat but merely a joke, Mr. Watts’ speech should not have been infringed upon. There are some odd permutations of this test. Consider that Giffords' opponent in her 2010 campaign was Jesse Kelly. He placed an ad in a local paper reading, “get on Target for Victory in November. Help remove Gabrielle Giffords from office. Shoot a fully automatic M16 with Jesse Kelley.” This was, evidently, constitutionally protected speech.

Today, a number of states have passed laws affirming the right of citizens to walk about the street openly displaying firearms, even if these displays might be regarded as threatening, apt to promote violence or offensive. And one could argue that, in confronting a gun-toting 2^nd Amendment enthusiast, an unarmed individual may feel some inhibition against exercising his or her 1^st Amendment right to accuse the man of being an Neanderthal who is bent on dragging our society back to the nasty, brutish and brief existence human beings experienced prior to civilization. 

According to a witness at that elementary school in Newtown, Connecticut, “At first we heard a bunch of kids scream, and then it was just quiet and all you could hear was the shooting.” No more sounds of children talking to one another. No more voices of teachers in class. This was not what the Founders intended.

see also: this post