Yesterday, I pointed out the flimsiness of President Joe Biden’s economics as expressed in his speech of last week before Congress. What he said in the same speech comparing the First and the Second Amendments does not make more sense. It confirms one conclusion of the economics of politics: for a politician, the cost of saying just about anything or of plain lying is low.
In arguing for still more gun controls, he explicitly invited a comparison between the limits of the First Amendment with those he wants for the Second Amendment:
This [gun control reform] shouldn’t be a red or blue issue. And no amendment to the Constitution is absolute. You can’t yell “Fire!” in a crowded theater.
If there is no fire in a theater, one does not have a First Amendment right to yell “Fire!” any more than one has the right to start shooting around if nobody is shooting at the patrons. But if there is a fire, somebody certainly has a right to shout a warning, just as an armed patron is or should be at liberty to engage and shoot anybody who starts shooting around.
Imagine that the First Amendment were submitted to the same limits as the Second Amendment in the most liberal (in the sense of permissive) states. Such restrictions would mean the following:
- Before getting a tool to use his First Amendment rights—say buying a speaker, a pen, or a computer—an individual would have to pass the National Instant Criminal Background Check with the FBI. In fact, purchasing any new such tool would require another similar permission. (Whether the use of one’s own throat would be possible without the FBI’s permission remains an open question.)
- An individual once convicted of whatever sort of felony would be barred for life from purchasing any free-speech tool (and perhaps using his voice or his writing hand too?). Just being “in possession of” such a tool, meaning being in immediate control of it (in his girlfriend’s unlocked closet, for example), would constitute a new felony.
- An individual convicted of misdemeanor of domestic violence, even just for the “attempted use of physical force,” or against whom a protective order has been obtained, would also lose his free-speech rights, sometimes forever.
In more restrictive states and in DC, the following restrictions on the First Amendment would be added:
- To be allowed to purchase free-speech tools or just to keep a tool he already owns, a person would be legally required to first obtain a personal free-speech license.
- A free-speech tool would have to remain in one’s own home and never be carried outside. The only exception would be to travel back and forth to a local “speaking range.”
- The capacity of your speech would be limited to a certain number of decibels or pages (as gun magazines are limited to 10 cartridges in some restrictive states) as well as by the prohibition of scary, government-style free-speech tools (say, a top-of-the-line photocopier painted in camo). Politicians would still have “mindguards” who would not be subject to these restrictions: the First Amendment would just be restricted for ordinary people.
Biden would want, at least for now, to further add three new national limits on the First Amendment:
- The capacity and military-style restrictions mentioned in #3 of the preceding list would apply nationally.
- It would be forbidden to buy any used free-speech tool in a private transaction or at a “Speech Show” without passing the Instant Background Check.
- Any violator of the new federal restrictions would be committing felony speech, and be forever forbidden to speak, write, or otherwise express his opinions.
The three lists above are illustrative and only mention the most obvious restrictions that would apply to the First Amendment if it were as restricted as Second Amendment currently is.
READER COMMENTS
Craig
May 3 2021 at 11:44am
What’s interesting is that if the liberal interpretation of the 2nd Amendment were correct in that it should be read in conjunction with the ‘well regulated militia’ phrase, the irony of “military-style restrictions” is that in actuality that interpretation would protect ONLY those weapons useful for military purposes.
“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.” — excerpt from US v Miller
Biden also quipped regarding the (I think) AR-15
“‘What, do you think deer are wearing Kevlar vests?’
§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
Joseph Story, Commentaries on the Constitution 3:§§ 1890–91
And yes the US military and police forces employ Kevlar. Its not polite to say it, but yes, the whole point is to potentially have a weapon to shoot at an avaricious government. Not just to go deer hunting.
Pierre Lemieux
May 3 2021 at 12:27pm
Craig: Some people have worried that Dictrict of Columbia v. Heller did not account for the importance of the right to keep and bear arms for resisting tyranny (people wearing kevlar). What do you say about this?
Craig
May 3 2021 at 1:21pm
Scalia connected the individual right to the fundamental right of self-defense and of course under that umbrella would be the ‘natural right of revolution’ against ‘intolerable oppression’
Of course no revolution seeks its legitimacy under the ordinary operation of the laws of the government against which one is resisting. The Founders/Framers didn’t seek similar in English law at the time, indeed Franklin said something along the lines of, ‘we all hang together or we will all hang separately’ — which acknowledges the obvious that, from the English point of view, the American Revolution was an ‘unlawful rebellion’ right?
Of course the liberals can’t even fathom the assertion of this right given that, to them, the government is the agency of all positive social progress. Who would want to fight them, right?
Conservatives tend to be more familiar with this, but don’t want to say it because it obviously means you want a rifle to potentially gun down government agents and those government agents also tend to be institutions that conservatives approve of, the police and the military. The result of course is that conservatives tend to argue from self-defense from criminality and hunting and the liberal response to that is that an AR-15 is disproportionate for that.
Biden’s quip was funny, but Eddie Murphy did it better in The Distinguished Gentlemen when he was out duck hunting and they opened fire on the flock of birds and notwithstanding an impressive volume of fire, only one bird dropped from the sky and Eddie Murphy quipped, “Must’ve had a heart attack”
Frank
May 3 2021 at 6:09pm
The analogy between free speech rights and gun carrying rights is misguided. A madman spewing forth words cannot do serious harm [except nowadays to self-proclaimed very sensitive individuals], but the bullets in a gun can do serious damage.
Compare guns to knives: The madman can kill more with a gun than a knife.
Moreover, control of guns does not seem to counter the 2nd Amendment. There is a federal law from the 1930’s requiring registration of machine guns and such. Seems to work — nobody recently has been killed by a machine gun domestically.
Finally, look at Justice Scalia’s — correct — insistence on the meaning of words when they were written. What was a gun in 1789? Couldn’t use it when it rained, on account the powder got wet. Wasn’t accurate. Took minutes to reload.
🙂
Greger
May 3 2021 at 7:53pm
I agree that most people will make the distinction you bring up.
If people will admit that they want to restrict the vast majority of law abiding gun owners to stop the few who misuse them, then I suggest that we do the same thing with alcohol. Drunk drivers cause the same order of magnitude of deaths as gun deaths (excluding suicides). Why not protect us from the few who misuse alcohol by requiring a background check to purchase, a license to own, and restrictions on transfers to anyone else. In some jurisdictions you would need a cooling off period before delivery and you would need to keep your alcohol locked up and if anyone thinks you are about to misuse alcohol they can enter your home and confiscate your supply.
Pierre Lemieux
May 3 2021 at 11:34pm
Greger (and Frank): Rather than controlling guns, forbidding cars for young men would probably be more efficient, for young men and cars are more universally present in crimes than guns. Even better would be to intern all young men between their 17th and 25th anniversary. I called that (as well as gun control) a simplistic model of public policy.
Jasper
May 4 2021 at 4:32am
I love this comparison because the relation between alcohol and the Constitution is surprisingly fraught, and presents a bunch of potential lessons for people wishing to create regulations or argue against them in other areas. You are not the first person to notice the deleterious effects of alcohol; even before drunk driving was a serious concern, temperance groups across the US were arguing against alcohol consumption because it degraded the moral fabric of society and caused domestic violence, among other things. Their campaigning led to the 18th amendment, banning the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States,” with an explicit mandate for the States and Congress to create relevant legislation. I’m sure you know about the failures of Prohibition as an example of economics at work, as the alcohol trade was driven underground and people turned to harder liquors and cocktails to evade the law. The 18th amendment did not even prohibit the personal consumption of alcohol – only the other links in the chain were banned (I wonder if their psychic services were as good back then?) The main point, however, is that the groups arguing in favor of temperance actually got a constitutional amendment passed, it gave Congress the mandate to do its thing, and despite all this it didn’t really work.
Where the story gets interesting is after the 21st amendment. That amendment repealed the 18th, but added this language: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” (emphasis mine) In layman’s terms, the 21st amendment made the regulation of alcohol the sole province of the individual states. Where the 18th amendment had given Congress a mandate, the 21st took it away. This way, states that wanted it could still enforce a prohibition of their own, but the decision could not be made on a federal level. Again, this is a consistent way to deal with a contested issue; the states are laboratories and are more responsive to the demands of their particular constituents. Over the next 50 years, the states would create a patchwork of regulations, with regulations like the minimum drinking age shifting as you crossed state borders.
The problem came in 1987. Under the Reagan administration, Congress had passed a law requiring all states to set their minimum drinking age to 21, on pain of losing 5% of their federally allotted highway funds. This violation of the 21st amendment was justified to prevent the danger of young people drinking and driving on the highway, making impossible (at least, very illegal) what was previously only illegal. The states sued, and the Supreme Court ruled, in South Dakota vs. Dole, that Congress withholding funds from the States was perfectly justifiable, even to the unconstitutional end of influencing the regulatory power expressly granted to those bodies. The withheld money was not too much in the eyes of the Court (the states could refuse if they wanted), and besides, the money was Congress and Congress could pretty much do what they wanted with it. And that’s why the drinking age is 21 across America.
So the story of alcohol regulation in America is the story of much Constitutional interpretation over the past 100 years. Prohibiting alcohol is a violation of liberty the same way prohibiting guns would be, and so a constitutional amendment was necessary to create a nationwide police movement against it. Congress and the States acted with the leeway they were given, and everything was hunky-dory until Prohibition got unpopular. Then there was another Constitutional amendment to undo the old one, and the power was kicked to the States, much as it is now. Then, towards the latter half of the century, as the Court’s interpretation of the Constitution opened more and more leeway for Congress to create standards (what exactly is the Constitutional justification for the federal minimum wage? 1. It’s because everything is interstate commerce now, and 2. the Constitution doesn’t say Congress can’t do that) Congress used some slightly underhanded manoeuvring to get around seemingly absolute Constitutional restrictions.
You need an ID to buy alcohol, and thanks to Dole, you need to be at least 21 in every state. Given that the courts are happy to allow Congress to push laws in the direction of unconstitutionality, federal laws designed to reduce gun ownership are seemingly fair game. If Congress and the Courts (so, really just Congress) determine that such regulations would promote the public welfare, and provide some leeway for the states to resist if they really want, I struggle to see how that would be different from the situation we’ve had for the past 30 or 40 years w/r/t actual alcohol regulation.
Pierre Lemieux
May 4 2021 at 10:46am
Jasper: Very interesting analysis. I suggest all readers of this post to also read it. It adds at least two important points to my post. First, federalism can be destroyed by the mere power to tax and to spend of the federal government. Second, give one inch to Leviathan, he will take a mile.
Craig
May 4 2021 at 1:03pm
“I love this comparison because the relation between alcohol and the Constitution is surprisingly fraught”
The Prohibition Amendment and its subsequent repeal is an interesting aside for sure. The first thing to note is that it is, in fact, an AMENDMENT….an Amendment that subsequent to the New Deal surely would not have been required, ie a broadly interepreted Commerce Clause and a finding that General Welfare was an independent source of substantive authority.
The repeal of Prohibition of course runs counter a bit to the New Deal and leaves a fair amount of alcohol regulation to the states which did not exist at the state level until more recently with states flaunting the federal marijuana prohibition.
Many think the repeal of Prohibition ended Prohibition, but NOT QUITE, I mean, I think it lingered in MS until the early 1960s and to this very day there remain ‘dry’ counties in places like TN (ironically Jack Daniels is situated in a dry county in TN)
Pierre Lemieux
May 3 2021 at 11:14pm
Frank: A few rejoinders corresponding to your paragraphs.
(1) The argument in your first paragraph would seem natural in virtually all other countries except the United States—real exceptionalism! Here, the 2nd Amendment is not inferior to the 1st. And note that if Marx had not had free speech, there is a good probability that tens of millions of deaths would have been avoided.
(2) But an ordinary peaceful citizen can defend himself much better with a gun, the “great equalizer,” than with a knife or his hands. Armed individuals do defend themselves successfully with guns, including in mass shootings. You may also have a look at another post of mine, The Purpose of a Gun Is Not to Kill.
(3) In Heller, Scalia would probably agree with you, but I think this is too restrictive. Even before the 1934 National Firearms Act, few crimes were committed with machine guns, which are very wasteful of ammo and thus require a logistic. It seems that even terrorists prefer semi-auto or, better, bombs.
(4) On the contrary, in Heller, Scalia insists that the 2nd Amendment, when adopted, applied to arms then “in common use,” as it must today apply to arms now “in common use.” Scalia adds:
Frank
May 4 2021 at 10:06pm
Well, yeah. It’s about externalities and how significant they are.
We regulate airplane flights over towns on account of noise, no matter how high the plane flies. The airlines get to keep their airplanes.
Guns are no different.
And constitutionally, even Scalia said that nothing in his DC decision prevented rules to ensure safety. That’s efficient.
But I must insist that a gun in 1789 is not a gun in 2021. 🙂
Pierre Lemieux
May 5 2021 at 9:14am
And what about the externalities to peaceful gun owners and those who need to protect themselves? And who is “we”? The concept of externalities has been used to justify everything, from restrictions to free speech, to the prohibition of alcohol or tobacco, and to rich old people refusing to die. I’ll have a major article on externlities in the Fall issue of Regulation. In the meantime, see Donald J. Boudreaux and Roger Meiners, “Externality: Origins and Classifications,” Natural Resources Journal 59:1 (2009); I also discuss externalities in another context in “Public Health Models and Government Intervention: A Primer on Public Health,” Reason Foundation, 2021.
Capt. J Parker
May 4 2021 at 3:54pm
Great Post. If I may, I have a different counter to the argument that no constitutional right is absolute because:
It was Oliver Wendell Holmes who penned those words while writing the opinion of a unanimous Supreme court in Schenck v. United States. The opinion (which ought to be more hated than Dred Scott) said that it is a Crime under the Espionage Act of 1917 to hand out flyers opposing the drafting of young men to be slaughtered in the trenches of WWI.
Pierre Lemieux
May 4 2021 at 5:28pm
Capt. J. Parker: Thanks for the useful reminder. Shameful indeed!
Todd Kreider
May 6 2021 at 2:12am
This is new to me and the most interesting thing I’ve read on the internet this year.
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