Let’s say the situation is this: The person wishing to burn the flag has a legal burning permit, it’s going to take place in a clear area with no danger of setting anything else on fire, and there’s no danger of a riot starting.
He holds the flag up and begins to touch a match to it. I grab the flag. He hollers, “Theft!”
Would I have a legal defense in saying that I took an oath to protect that flag–the Pledge of Allegiance? I recall that, in reception station (just prior to basic training), they made us recite the pledge.
I’m not saying I would prevent a flag burning. I have ambivalent feelings about that. Let’s say that this flag burning was going to be done before any amendment was passed banning flag burning, e.g., today.
Maybe this is more of a GQ? If the mod so wishes, feel free to move it.
IANAL, but I’m quite certain that the Pledge of Allegiance is not a legally binding oath, which it would have to be in order for this defense to have any chance. I’m afraid you’re criminally liable for stealing that man’s flag.
I don’t think the Pledge of Allegiance (to the flag) has any particular legal significance. Note that the enlistment oath is to the Constitution, not the flag.
I’m not a lawyer, but I read about a rather recent court case quite similar to this… but for the life of me I can’t remember the title of the case or where I read it, so consider this anecdotal at best.
But IIRC, the gist was that you are on shaky, if any, ground. With a permit, and assuming of course that he didn’t steal the flag himself, he is free to do as he damn well pleases, and that taking the flag from him could result in such charges as Theft, and even Assault. It comes down to your right to do what you want, as long as it doesn’t harm/offend others. Its definately not harming you, and the offense part is handled by the permit.
But back to the Pledge of Allegiance. In that, you quite literally pledge your allegiance to the flag- but nothing more. Yes, most such pledges imply protection, but this one goes on to say that you ally yourself with the “Republic for which it stands”, and this means you have to uphold its laws. And as I [think I] illustrated, taking it is not upholding the laws of the republic and so mentioning the pledge might get you in more hot water than not.
This may be a quibble, but I think any oath implied by the Pledge of Allegiance would be to the institution of the Flag, not to protect the physical object. If I were prosecuting the subsequent theft and assault case, I would ask why then don’t you make a habit of running around with umbrellas every time you see a flag flown in the rain? Why don’t we see you shinnying up flagpoles in tornado weather?
The Flag (capital F) is something we fortunate citizens carry within us. It’s a shared idea, not a piece of yardage. And that’s what you swore allegiance to. In my opinion.
Miaowara Tomokato
“The Flag (capital F) is something we fortunate citizens carry within us. It’s a shared idea, not a piece of yardage. And that’s what you swore allegiance to. In my opinion.”
We could go several steps farther. If the Flag (capital F), is a shared idea, and that idea is reflected by the Constitution, and the Constitution protects freedom of expression, then protecting the Flag (capital F) could be construed to mean allowing a flag (lower case f) to be burned.
I forget the particulars, but, many years ago, one or two guys ran onto the field at Dodger Stadium and tried to set an American flag on fire. A player ran over and snatched the flag from them. I’m fairly sure the two guys were arrested and not the player, though they were probably arrested for trespassing and endangering private property and things like that. Whether the player could’ve been arrested, I have no idea.
Um, you do know that burning a flag is one of only a few proper ways of disposing of it, right? One other way being to dismantle it into it’s parts (stars, red stripes, white stripes, etc), though I don’t remember if you are supposed to burn the pieces or not.
That’s probably the main reason that burning a flag is not illegal- in fact just the opposite is true.
I think that if flag burning is made illegal the only recourse that would truly protect the flag of THIS country, and this only applies to the flag of THIS country (freedom of expression being our first commandment) would be to burn every flag you possibly could.
Yeah. You’d be guilty of theft. If you were snatching the flag from some protesting freak using his constitutional right of free speech to soil and burn the symbol of America, chances are, around here anyhow, you’d never get convicted, even charged or need a lawyer. In fact, the cops might arrest the guy for littering.
Some of us believe that the Symbol of the nation goes beyond free speech and that free speech itself has started to infringe on the rights of others. Some of us believe that all of the blood spilled for the Flag should get it a lot more respect than having of dirty handed, foul mouthed free-speecher burn it in public just to prove a vague point.
Yes, I’ve read all of the arguments over free speech and the flag, that the flag stands for free speech, which is what everyone really died for and preventing the flag from being burned in protest is actually undermining the symbol itself, but I don’t care. Rationalize it all you want, it is still wrong.
A symbol is something which represents the reality. You are in effect saying that you value the symbol above the reality. It’s like dashing into a burning building to save a picture of your wife and children, and ignoring your actual family.
No one should ever die for “the flag”. The enlistment oath sworn (or affirmed) by members of our armed forces binds them to support and defend, and bear true faith and allegiance to, the Constitution, not the flag. The President of the United States swears (or affirms) that he will preserve, protect, and defend the Constitution, not the flag. Of course members of the armed forces also protect the people of the United States from having their lives or liberty taken by enemies, foreign or domestic. The flag is a symbol of the United States, of its Constitution, of the freedoms that Constitution protects, and of the accomplishments of the American people. It’s only meaningful as a symbol; it isn’t the reality. In and of itself, it’s just a colored piece of cloth.
I’ve never seen the term “free-speecher” used as an insult. (Well, to be honest, I’ve never seen the term “free-speecher”, period.) How about those “freedom-lovers”? Those “Constitution-defenders”? Gotta keep an eye on them!
I think rationalizing (definition 2) is more what you are doing. We are reasoning: going from first principles to conclusions in an orderly and logical fashion.
Yes, you would be guilty of petty theft (assuming a cheap flag.) But more importantly, you would be guilty of robbery (theft by putting someone in fear for their physical safety) and arson. And you would likely be convicted, because you were a rash fool, not understanding that this was a flag that was being properly burned under the United States Code in a ceremony designed to retire old and worn flags. Get all the facts before you decide to play hero.
