First two Amendments
One protects speech, one gun rights
But they’re not the same
As the appropriate government response to the massacre in Newtown is debated, we’ll hear gun rights advocates making comparisons between the First and Second Amendments to the Constitution. Wayne LaPierre did it in his poorly-received speech proposing armed guards in schools. If we’re going to talk about placing restrictions on the right to bear arms, the argument goes, then we should also be discussing possible limits on freedom of speech, particularly regarding violent video games and movies.
There’s something to be said for the idea that violent images displayed on the various screens we view could have an impact on what we think about violent acts. It’s true that some people (particularly the young or emotionally unstable) might become more agressive in the real world as a result of engaging in the aggressive behavior required to “win” violent video games. These issues certainly should be considered along with common sense gun safety laws.
But before we go too far down this road, equating free speech rights with gun rights, we should take a look at what’s actually in the Bill of Rights.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
There’s a big difference – and I’m not talking about a “well-regulated militia”, although that does seem to place the right to bear arms within a particular context and explicitly allows for regulation. There’s another bigger difference that is rarely discussed.
Concerning First Amendment rights it says “Congress shall make no law respecting … “. Concerning Second Amendment rights it says, “… shall not be infringed”
If the Founders wanted the rights outlined in the First and Second Amendments to be treated the same, they could have included them all in one amendment by adding, ” … and to keep and bear arms” to the end of the First Amendment Or they could have used the same “make no law” language in both Amendments. But they didn’t. They used separate amendments, with different language. Why?
Because the Founders believed that these rights are not the same. They thought it possible to pass laws regarding some rights (like the right to keep and bear arms) without “infringing” upon them. But certain rights (like freedom of speech, freedom of religion, or the rights to assemble and petition the government) were different – they deserved a higher level of protection.
Of course, we do have laws concerning First Amendment rights. Slander, trademark and copyright laws place limits on freedom of speech. The annual idiocy of Fox News fighting against an imaginary “War on Christmas” reminds us that it is difficult to balance the “freedom” and the “establishment” clauses in a way that is satisfying to everyone.
But the existence of those laws regarding First Amendment rights actually supports the case that common sense gun safety laws are not prohibited by the Second Amendment. If we can have laws regarding rights about which “Congress shall make no laws” then we can certainly have laws limiting rights about which the Bill of Rights uses less restructive language.
So, let’s have the discussion. Let’s talk about eliminating loopholes that prevent background checks for 40% of all gun purchases. Let’s consider limiting the size of ammunition clips. Let’s discuss whether or not it would help to increase armed security at schools. Let’s look at the existing rating systems that help parents decide if their children should play certain video games or see certain movies.
But let’s not pretend that the Constitution prevents us from doing anything about guns besides having more of them.