1st vs. 2nd amendment

Great Debates
1

I’m going to admit right from the start of the debate that I don’t really understand the 2nd amendment all that well. I don’t study it, I haven’t studied it, and, while I have no real problems with anyone owning a gun I’m not a proponent of the amendment and it wouldn’t necessarily bother me if the government banned firearms (the impossibility of such an enforecement notwithstanding).
On the other hand, I love the first amendment. The right to free speech, the right to free press, freedom of religion and to peaceably assemble are what I would consider to be inherent rights and some of the fundementals of our democracy.

All that’s just background. Here’s the issue: As a huge proponent of the first amendment, I still understand that limitations must be placed on it. This, despite the fact that it clearly says in the first amendment that there shall be NO LAW that does so. No law. There’s no qualifier there. No law.
But the courts have found that there really are qualifiers. Libel and slander laws. Time place and manner regulations. Open meetings acts.
I understand the need for sedition laws. If you’re about to give away secrets that could get people killed, your right to free speech does not supercede another person’s right to stay alive.
I’m a huge proponent of the 1st amendment and I understand this.
The media understands this as well. For the most part, I would say. But if the media didn’t accept this, well, they could protest. They’re the media! They have the ability to reach out to the populace and say “we demand the right to yell ‘fire’ in a crowded theatre!” But they don’t. I don’t see a lot of my restrictions as a slippery slope. Some restrictions, perhaps, but not all of them. I think most people don’t either.

But we move over to the 2nd amendment and what happens? The NRA, and similar groups, come in at every opportunity to block legislation and stop cases from going to trial because EVERYTHING is a slippery slope. Every clip or scope or machine gun that’s taken away means you’re just one step closer to losing everything.
I know I’m painting things with a very large brush. Help me break it down to more reasonable ideas and scenarios.
I know some may say I’m comparing apples to oranges but I don’t necessarily think that I am.

I’m asking this: why is it that I can accept certain limitations on my freedom to speak or protest or print something but gun advocates have a much more difficult time doing the same? Why is it that I welcome court rulings because it constantly shifts what is or isn’t possible in a media setting but advocates of the 2nd amendment do not share a similar outlook on the judicial process?
Why is there such a different outlook when it comes to government intervention on your fundemental rights?

2

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I guess the courts have decided that these laws aren’t an abridgement of speech.

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That sounds more like espionage or treason to me. Sedition laws have been used to silence opposition to wars. For example several people were jailed for protesting against WW I.

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What cases has the NRA prevented from going to trial?

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Most gun owners do accept certain limitations. There are currently plenty of firearm laws throughout the state and federal governments.
Marc

3

I would just point out that there are limitations on the second amendment. You cannot legally buy a machine gun, and there are other restrictions such as the gauge of shotguns that are allowed. Those are just a couple examples, but the point is that there already are restrictions on the second amendment.

I think the opposition from the NRA comes from the belief that many who support gun control would ultimately seek to ban all firearms, or make it extremely difficult to get a firearm. A belief that may or may not be valid.

4

Indeed. I think you’ll find the vast majority of gun owners support laws making it illegal for convicted felons and the mentally ill to possess firearms. I think you’ll find that the vast majority of gun owners support laws making it illegal to bring firearms into establishments that serve liquor. I think you’ll find that a large number of gun owners will agree with restrictions on transporting loaded weapons in their automobiles.

Perhaps because this isn’t necessarily true; it’s an unfounded impression you hold? Or how 'bout this? We cry out against restictions on gun ownership because we believe they’ll be more effective at circumcising our liberties that at curtailing crime?

5

—Those are just a couple examples, but the point is that there already are restrictions on the second amendment.—

It’s only clear that something is a restriction if you claim to know what the original amendment really justifies. There is, of course, a big debate over that.

In general, U.S. courts are not very responsive to the idea that any rights are “absolute.” Arguing that courts have no power to do something is often a sure way to get them to do it.

I think the difference between the first and second amendment is that the first enshrines abstract moral principles that may not always be pragmatic, while the second enshrines a more concrete and specific issue that is justified in terms of its pragmatism.

6

I would allow non-violent felons to own firearms after they have served their time. But definitely none for violent felons and mentally ill.

I don’t agree with this. I went to a lot of trouble to get a CCW in my state, but I can’t carry in a restaurant because they serve beer. It’s already illegal to carry with any detectable level of acohol in your body, so I don’t see the point.

What kind of restrictions? Just curious.

Damn straight!

7

Why does the slope seem more slippery with regard to the second ammendment than the first?

For one thing, I’m not aware of any significantly large and influential organizations whose sole purpose is to restrict free speech as much as possible.

Another thing, you very rarely hear anyone say that they believe free speech is bad, only that certain types of speech are bad. There are plenty of people who say that all firearms are bad, period.

The second ammendment seems to be in more danger of being seriously infringed than the first, so we have to be more vigilant about it.

8

MGibson, I believe that many of rulings ARE restrictions on speech. I also understand that my freedom of speech should not infringe upon another person’s freedom to be left in peace.

Let’s take a really silly example of trying to hold a protest in someone’s living room and he calls the cops on you. The courts would most likely conclude that you and your group do not have the right to protest there. Your right to peaceably assemble has been compromised. Your right to free speech has been compromised. The courts don’t care. You invaded someone else’s space and that supercedes any right you have under the 1st amendment. I agree with its assessment.

You are correct in that I should have provided proof of the NRA stopping cases from coming to trial. I shall try to find some, or hope that others reading this can find some. If not, I will retract that statement. I hope you and I both still agree that the NRA is a powerful lobbying group that can and does influence legislation.

UncleBeer, how do you feel about the NRA? I know you can’t really speak for anyone else, but how do you think the “vast majority of gun owners” feel about the NRA? Do you think they’re a fringe group or are they are helpful in protecting rights you feel to be important?

9

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That’s not quite true. I might be profoundly disturbed by something you had to say but that doesn’t mean you have no right to say it.

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That’s really a very silly example that has nothing to do with the 1st Amendment. Arresting you for tresspassing is not an abridgement of your free speech.

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Well, yeah.

I don’t know how an organization with so many members can be called a fringe group.

Marc

10

Well I can’t speak for UncleBeer or any one else, but I like to think that I have a logical view on the NRA.

What I hope most gun owners want, is a happy middle ground with sensible gun laws that work. As Kalashnikov points out, there are powerful lobbying groups which take the extreme left as it relates to gun control. The NRA counters this by taking the extreme right. Does the NRA rhetoric sound extreme and paranoid to most gun owners? With any luck, yes. However, that’s what’s needed to oppose the other extreme.

As to what the 2nd amendment means and why every issue is a slippery slope:

Several of the other posts already point out that there are lots of gun laws already, which are somewhat comparable to libel and slander laws. However, the reality is really more extreme.

I may not get the wording just right, but the 2nd amendment goes something like, “Militias being necessary to a free state, the right of the people to keep and bear arms shall not be infringed”. The Founding Fathers weren’t talking about hunting. They were talking about combat. Some people believe that “militias” means state militias, but that really doesn’t make much sense to me. After all, couldn’t a govenor (in theory) use a state militia against the people in that state? Remember, the Founding Fathers lived in the days of Minute Men and The Sons of Liberty. The most advanced weapons the army had were muskets and cannons. The 2nd amendment is saying that the people should also be allowed to own the most advanced weapons (in those days muskets and cannons).

Today, the army has tanks and nuclear weapons. Now I don’t hear anyone (at least not anyone sane) arguing that citizens should also have access to these kinds of weapons. However, when you get right down to it that’s what the 2nd amendment means.

11

Not speaking for UncleBeer, but as a life member of the NRA, I don’t feel that we are a “fringe” group, not with 4 million plus members. From my own experience there are a large number of gun owners who despise the NRA for compromising away our rights. The NRA’s (limited) support of the Brady Bill and the full support of Project Exile in Richmond, VA, for example, has driven out a lot of members into, more, shall we say, conservative advocate groups of the 2nd Amendment. So when mention is made of the NRA and it’s gun fanatic members, one may not know the half of it.

12

Probably not the best example. You would be arrested for trespassing, not for anything you said.

Libel laws are a bit better of an example. If you stand on public property in front of his house with a megaphone telling the world that he is a “pantywaisted goat felcher” even though you know it is not true, you can be sued for libel.

Or, even if you are saying complimentary things, but doing so at 3 AM outside his bedroom window, you can be arrested for disturbing the peace.

Both of those situations placed other priorities higher than your right to speak.

13

I called it a “silly example” because pretty much everyone agrees that you’d be trespassing and should be arrested. But you’re all skipping over the non-silly part of the example. This is an abrigment of your freedom to protest.
You skip over it because you go straight to the famous legal doctrine of “duh!” Of course you’re trespassing. End of discussion. But it isn’t. Not by a longshot.
See, if the 1st amendment were completely and totally absolute, if there truly were NO LAWS that could infringe upon my rights, I could hold a protest right there in your living room.
The law of trespass limits the rights granted to me “absolutely” by the 1st. There are no ifs, ands, or buts about it. I accept these restrictions because it’s so glaringly obvious why we need trespassing laws on the books.

I called the NRA “fringe” not in reference to its numbers but in terms of its overall outlook to gun laws. Do you look at what the NRA is doing and say “thank God they’re speaking for me!” or do you say “why don’t they fight the fights that need fighting instead of every piece of legislation that deals with weapons?”

A lot of people love animals but don’t support PETA’s tactics. Is it the same with gun lovers and the NRA?

Yes, there are people out there who believe all guns are evil and must be banished from the face of the Earth. Does this mean one must fight tooth and nail for every single right lest they all disappear? Does anyone bother looking for a happy medium or is that even possible?

14

Part of what I said in my previous post spoke to this (somewhat). Both sides fight for the extreme and what we get is the medium. Perhaps it more of a tense medium then a happy medium. If you fight for the “happy” medium and your opponent takes the extreme (left or right), then you wont end up in the middle ground. Since, as you stated “there are people out there who believe all guns are evil and must be banished from the face of the Earth”, there must also be a group that does “fight tooth and nail for every single right”. Both sides lose a little, but neither loses all together. Our rights do not disappear nor do we have anarchy.

15

To be honest I thought we passed a happy medium on gun laws decades ago. I assume by happy medium you mean a compromise between both groups.

Just as an example I’ll post something that someone else wrote, but applies to the compromise question quite well from a pro-gun rights perspective. (It’s somewhat of a rant) I also believe that this can apply to any of our rights. Rights aren’t taken away all at once, but at small bits over a period of time.

What has the anti-firearms faction ever compromised on? A compromise exists when both sides gain something.

What did we gain when they demanded that our magazines be limited in size?

What did we gain when they demanded that our firearms of military pattern (speciously called “assault weapons”) be registered?

What did we gain when they demanded that some of those firearms should be turned in as illegal after we registered them pursuant to the law?

What did we gain when they demanded that certain firearms be banned as “Saturday Night Specials” (discriminates against the poor)?

What did we gain when they demanded that we have to pay to get FOID cards in some states?

What did we gain when they demanded that we have to pay for fingerprinting and mug shots to get an FOID in some states?

What did we gain when they demanded that we strip off the
cosmetic features from our firearms of military pattern?

What did we gain when they demanded that we undergo background checks that we have to pay for?

What did we gain when they demanded that certain firearms should not be imported?

What did we gain when they demanded that we should have to wait to a certain period of time before possessing property we had already paid for?

What did we gain when they demanded background checks at gun shows even for personally held firearms being sold by non-dealers?

What did we gain when they demanded that we pay a $200 tax to own certain firearms?

We gained nothing! We have compromised and compromised and compromised until we are tired of being the ones who always give something up.

They always speak of the “Good first step”. The Brady Act was a “Good first step”. The Assault Weapon ban was a “Good first step”. The magazine ban was a “Good first step”. The ban on imports was a “Good first step”. THERE IS NEVER A SECOND STEP FOR THESE PEOPLE AS THE LAST STEP IS THE GOAL; AND THAT GOAL IS THE UNILATERAL BANNING OF ALL FIREARMS OF ALL TYPES.

The anti-firearms faction NEVER gives up ANYTHING! They just keep demanding that we compromise away our rights, our liberties, and our property; and that we should accept this as “common sense”. In the same breath they tell us that they are not anti-firearm and that they don’t want to disarm law abiding citizens.

The same people who say that “Saturday Night Specials” should be banned because they have no militia purpose are the same ones who say that “assault weapons” should be banned because they are “weapons of war”.

So tell me about “compromise” and “common sense” and how they don’t raelly want to disarm us. Then ask yourself this one simple quesion:

If it is, as the Founders stated, that firearms in the hands of the citizenry are the last bastion against government tyranny; why is that same government is so anxious to disarm that citizenry – especially those firearms of military utility?

It’s not about safety. It’s not about common sense. It’s not about “the children”. It’s about POWER; raw, unbridled power. Make no mistake about that. The power to regulate is the power to deny.

16

Shah Jehan, I never asked if anyone was fighting for the happy medium. I asked if anyone was even looking for one.
Both you and John Harrison seem to believe that the NRA must adopt this “tooth and nail” stance because the other side won’t budge on their position. But if so, doesn’t this say that the NRA doesn’t always believe in the things they fight for? They fight because they must, not because their hearts are behind it? This seems like the wrong attitude to have.

Now John Harrison has listed a number of things that the gun proponents have “given up.” May I ask you how many of those are acceptable to have given up? How many of those concessions would you say makes America a better place to live?
I love the 1st Amendment. I love those who support the 1st Amendment.
My side has “given up” the right to print fabricated stories about a senator having sex with a child.
My side has “given up” the right to burn crosses on your lawn.
My side has “given up” the right to use a bullhorn and shout into the ears of random passerbys.
My side has “given up” the right to have public schools that only teach creationism.

I’d say we’re stronger for it. I still love the first amendment and everything that comes with it, but I’d say we’re stronger for it.

17

Au contraire. As far as I can tell, the NRA is pretty big on judicial rulings. (Particularly with regard to a certain Federal district court case in Texas decided recently, wherein the Judge said that the 2nd Amendment protected an individual right, not a collective right.) The courts are the place where laws can be struck down as unconstitutional. The NRA doesn’t dislike the courts, they dislike the legislatures.

18

Ender, I have now have this visual of you as the guy covered in bees. Swarm, my pretties!

If I may recast the debate: Why do fans of the Second Amendment consistently take the position that the amendment does not protect the right of felons and crazy folk to bear arms, even though the amendment itself says nothing whatsoever about not protecting the rights of felons and crazy folk to bear arms?

And a follow-up: Why is that that 2nd Amendment fans also tend to decry the “judicial activism” of reading words into laws when those words aren’t litearlly there?

19

minty:

I’m a fan of the Second Amendment, and I believe I interpret it consistently with the rest of the Constitution. While it’s true that the amendment doesn’t mention felons, neither does the Fourteenth – and yet the “right to vote” guaranteed by, inter alia, the latter amendment’s Due Process Clause can nonetheless be legitimately denied to felons.

I do decry “judicial activism” when it crosses the boundries of well-established statutory interpretation procedure: that is, if the plain meaning of the words is unambiguous, that meaning must be enforced; if not, the court may consider legislative history and commentary, for example, to divine intent.

I believe the Second Amendment should be read to confer an individual right, in the same way that the First, Fourth, Fifth, Sixth, and Eighth do.

Have at it.

  • Rick
20

And yet felons and crazy folk have the right to free speech. Passing strange, eh?