“A Need To Exercise Judgment”: When The First And Second Amendments Clash
Battles over either the First Amendment or the Second Amendment often share similar dynamics, with defender/exercisers of the amendments arguing that the freedoms granted by the founding fathers are (nearly) absolute, and should not be modified just because sometimes people get hurt by them. But the issue gets stickier when a situation pits the First against the Second.
A newspaper in White Plains, N.Y., has enraged local (and not-so-local) gun owners by publishing an interactive map revealing the names and addresses of gun owners in the area. The information is public (and New York’s Freedom of Information Law is fairly expansive), so it’s not as though the newspaper unearthed secret documents or data and published it. What’s different now is that the Internet and other technology allows a newspaper—and for that matter, any blogger or website commentator—to make public information very, very public—so much so that the people affected feel they have been violated.
Some of the gun owners reacted aggressively, posting the names and addresses of editors and reporters at the Journal-News (including the guy who does the puzzle page) and making not-so-veiled threats against the journalists’ safety. The Journal-News has been unfazed, and is seeking similar gun owner information from another county to publish. That county is balking, and the paper is ready to go to court. Since the information is public, experts believe the paper will likely win, a victory for the First Amendment.
Meanwhile, the paper has been forced to hire armed guards at two of its offices to protect employees in light of the threats. That, in a way, is a victory for the gun owners and their interpretation, at least, of the Second Amendment. The First Amendment is in full force on the paper’s website, but without the Second Amendment, editors and reporters might not feel safe publishing it. On the other hand, were so many guns not so easily available, perhaps they might not have felt threatened in the first place.
There will surely be a discussion in Washington—though perhaps not much action—on gun safety and gun rights. And newspapers will continue to defend the right to free speech. But in both cases, there’s an issue of sheer judgment. Sure, some information is available to the public and should be. Does that mean newspapers should make it that much easier to learn? Some newspapers routinely report the names and salaries of public employees—even low-level employees. It’s not secret, and the workers are paid by public funds. But is it really necessary to publish what most of us consider private information? There’s an undercurrent of judgment to such lists, as though the public employees have to defend every penny they make (while well-paid CEOs of privately-held companies do not).
The names of convicted sex offenders are also public. Should newspapers publish these names, perhaps with an interactive map? To a parent, the answer might be a no-brainer; wouldn’t you want to know if a pedophile was living in the neighborhood? But publication of such information also makes it virtually impossible for an ex-con to return to society. He or she would be shunned, even in danger, wherever he went. How does someone become part of a noncriminal community in those circumstances?
Gun owners are not by definition criminals, of course. But guns are dangerous weapons if they are in the wrong hands or if there is an accident. Surely, many people would want to know if someone in their neighborhood had a gun. But is the publication of the information itself not just a little provocative? And perhaps it’s also a bit revealing—the anonymous people who posted threatening comments on the Internet (along with the addresses of Journal-News employees) probably weren’t the sort of people, prior to the controversy, neighbors feared would shoot them. But their aggressive reaction to the Journal-News list suggests some of them might have a dangerous streak.
Exercisers of the First and Second Amendments are understandably vigilant in defending their beliefs. But both should exercise judgment as well.
By: Susan Milligan, U. S. News and World Report, January 3, 2013
“The NRA’s Worse Nightmare”: Gun-Rights Advocates Should Fear History Of Second Amendment
On Sunday, New York Sen. Chuck Schumer went on CBS’s Face The Nation and argued that people who support gun control “have to admit that there is a Second Amendment right to bear arms”.
Schumer’s effort to reach out to the gun-rights community may be well-intentioned, but it is also deeply ironic. If the nation truly embraced the Second Amendment as it was originally written and understood, it would be the NRA’s worst nightmare.
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.
It’s time for a history lesson about one of America’s most popular and least understood rights. It’s also long past time to expose the hollow, ignorant fawning over the Second Amendment by gun-rights advocates for what it is.
In contrast to the libertarian fantasies that drive the contemporary debate about firearms in America, the Founders understood that liberty without regulation leads not to freedom, but anarchy. They understood that an armed body of citizens easily becomes a mob. In other words, a bunch of guys grabbing their guns and waving a flag emblazoned with a rattlesnake is not a militia.
A cursory look at the history of the Second Amendment shows that regulation was a central part of its rationale—putting “well regulated” at the very start of the amendment was no accident. For instance, starting in the colonial period, states enacted a variety of “safe-storage” measures to deal with the danger posed by stored gunpowder. A 1786 law went as far as prohibiting the storage of a loaded gun in any building in Boston.
But many people who defend gun rights today are more than happy to skim over the first part of the amendment in their zeal to embrace the second. (The NRA itself literally chopped off that pesky first half when it chiseled the words on the face of its old headquarters.) As a result, our modern gun-rights ideology is often unmoored from any sense of corresponding civic obligation.
This ideology claims to rely heavily on the Second Amendment, and yet it is rooted not in the Founders’ vision, but in the insurrectionary ideas of Daniel Shays and those who rose up against the government of Massachusetts in 1786 and 1787. Indeed, there are gun-rights advocates today who think the Second Amendment actually gives them the right to take up arms against the government—but if that were true the Second Amendment would have repealed the Constitution’s treason clause, which defines treason as taking up arms against the government!
This is all so deeply twisted: after all, the Founders framed the Constitution in part as a response to the danger posed by Shays’ Rebellion.
As a result, our modern debate over gun rights has virtually nothing to with the Founders’ Second Amendment; that debate actually started about 30 years after the Amendment was adopted. What emerged was the notion that reasonable regulation was not inconsistent with the right to bear arms. In fact it was the only option in a heavily armed society.
Up until the 1980s, there was no “individual-rights” theory of the Second Amendment. Many states had adopted provisions protecting an individual right to own guns, but this tradition was distinct from the Amendment. All that changed when right-wing think tanks undertook a conscious effort to fund new scholarship to rewrite the amendment’s history. At first that effort was not well received, even in conservative circles. As late as 1991, former Supreme Court chief justice Warren Burger famously called the idea of an individual right to bear arms “one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special-interest groups that I have ever seen in my lifetime.”
But the revisionism ultimately won over most of the legal establishment, reaching its zenith in 2008, when the Supreme Court broke with 70 years of established jurisprudence and affirmed that the Second Amendment protects an individual right to have guns in the home for reasons of self-defense.
In order to do this, the majority followed the lead of gun-rights advocates and essentially excised the first clause of the amendment—the “well-regulated militia” part—from the text.
(Let us pause briefly to note the irony that the opinion, District of Columbia v. Heller, was written by none other than Justice Antonin Scalia—America’s staunchest defender of originalism, or reading the Constitution according to its supposed original meaning.)
If the Heller court had simply said, “Look, most Americans think the Amendment is about an individual right, and no one really cares what James Madison or the average man on the street in 1791 thought”—then the case would be pretty uncontroversial. Instead, Scalia produced a pompous, error-filled opinion that has done more to discredit his beloved originalism than a generation of liberal academics ever could.
Even leading conservative legal scholars have harshly criticized the ruling: federal judge Richard Posner said most professional historians reject Scalia’s historical analysis in the case, and described Scalia’s jurisprudence as “incoherent”. Perhaps even more damning, J. Harvie Wilkinson, a federal judge appointed by Ronald Reagan, compared Heller to Roe v. Wade.
Of course, the fact that the Second Amendment is now treated as an individual right has almost no bearing on gun regulation, because no right is absolute. You can’t shout “Fire!” in a crowded theater, nor can you fire a gun in one.
And most Americans—including those who own guns—are open to reasonable gun regulation. The only people who oppose such policies are the NRA, extreme gun-rights advocates, and the craven politicians who do their bidding.
But what would such regulation look like?
For one thing, we could have a comprehensive system of firearm licensing and registration. At the moment we have none (even though it is hard to fathom how one might ever muster a militia without such a system). To avoid the irrational fears of gun confiscation, such a system ought to be instituted by the states, which maintained militias long before the Second Amendment existed. Could anyone with even a minimal understanding of the history of the Second Amendment seriously maintain that a state-based system violated the Amendment’s text or spirit?
The bottom line is that although we hear the Second Amendment invoked all the time, few of those who trumpet it the most vehemently realize that restoring the Founders’ vision of the Second Amendment would be a call for more gun regulation, not less.
By: Saul Cornell, The Daily Beast, December 18, 2012
“The Republican Party Is Becoming Goofy”: Judge Richard Posner Bashes Supreme Court’s Citizens United Ruling
The American political system is marked by legal corruption in which “wealthy people essential bribe legislators” with campaign contributions, according to one of the nation’s most influential federal judges.
Speaking to foreign educators, Judge Richard Posner told the assembled that the wealthy give lots of money to legislators and that an individual legislator “knows that if he doesn’t promote the interests of the donor,” he won’t get any more money.
Posner is a renowned member of the Chicago-based Seventh Circuit Court of Appeals. He is not only the nation’s most prolific jurist-academic, he is seen by some as the most influential judge outside of the nine members of the U.S. Supreme Court.
Posner is intellectually fearless and, increasingly, far from the reflexively conservative thinker that he’s been long seen to be. In a recent National Public Radio interview, he spoke of the “real deterioration in conservative thinking” in recent years. “I’ve become less conservative since the Republican Party started becoming goofy.”
Posner has taken a poke at the high court’s controversial ruling before. But he’s taking his disdain for the decision to a broader audience. His latest comments came at a post-luncheon appearance Thursday before visiting Asian legal academics at the University of Chicago Law School, where he remains a faculty member.
Posner left no doubt about his criticism of the Supreme Court’s Citizens United campaign-finance decision. He said, “Our political system is pervasively corrupt due to our Supreme Court taking away campaign-contribution restrictions on the basis of the First Amendment.”
He also didn’t mind naming some names, in particular that of Justice Antonin Scalia, a onetime member of the law school faculty who lectured and taught at the school in February. Posner brought up the Supreme Court’s 2008 decision in District of Columbia v. Heller, affirming the right of individuals to have handguns at home for self-defense.
Posner doesn’t think the Second Amendment has anything to do with an individual’s right to bear arms, a basis of the decision for which Scalia wrote the majority opinion.
“That didn’t slow down Scalia,” Posner told his Asian listeners. “He loves guns. He’s a hunter.”
By: James Warren, The Daily Beast, July 14, 2012
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