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Every Constitutional right, including any Second Amendment right, has limits. This diary's title illustrates that there are even limits on freedom of speech under the First Amendment of the Bill of Rights prohibiting any law "abridging the freedom of speech". On the one hand the government exists under the constitution mostly to maintain public order, to safeguard lives and to prevent property loss or damage. On the other hand, the same Constitution prohibits any law abridging speech. Balancing of conflicting Constitutional interests becomes unavoidable.

Hence, under the First Amendment, reasonable regulation of the time, place and manner of speech, even political speech, are allowed, some forms of malicious pubic speech may be prosecuted civilly in court, public health justifies regulation of labeling, etc. etc. When it comes to the disorderly conduct caused by the kind of speech illustrated by the diary's title, the current balance in our jurisprudence lies at the point where speech "directly encourages others to commit specific criminal actions of their own".

Although I'm in my 5th decade of law practice, I never had much professional call or personal motivation to pay much attention to 2nd Amendment jurisprudence. Until now. However, I have studied, published and litigated Constitutional Law matters. Yesterday's events at Sandy Hook moved me to look into the U.S. Supreme Court Second Amendment cases. Follow me out into the tall grass if you want to know what I found out or would like to talk about it come more.

The jurisprudence under the Second Amendment isn't particularly well developed. One reason is that until recently, the Second Amendment was sort of the red headed stepchild of the Bill of Rights in the U.S. Constitution. Let me explain.

At the beginning of the 20th Century, the federal Bill of Rights generally didn't apply to state and local government. If Americans enjoyed, for example, freedom of speech during that era, it was because State or local civil rights, not federal civil rights protected them. A conservative U.S. Supreme Court refused for years to recognize that the 13th, 14th and 15th Amendments, the Civil War Amendments to the U.S.Constitution, had wrought a fundamental shift in the balance between State and Federal power, tipping to the Federal side, under the Constitution. Eventually, Supreme Court jurisprudence evolved to recognize "selective incorporation" by which. one by one, over a period of many years and many cases, various federal civil rights become applicable to State and local government. My "stepchild" remark was because gun rights have only recently been incorporated,the last federal right through the gate, as it were, a right to firearm possession, though not an unimited right. Before then, the Second Amendment had applied only to the federal government.

That didn't change until the 21st Century, in 2009, when the Roberts Court explicitly incorporated a firearm prohibition under the 2nd Amendment against the Second City in the case of McDonald v. City of Chicago. With Justice Alito leading the charge, a divided Court finally promoted the 2nd Amendment among the pantheon of American civil rights protected by the Bill of Rights.

The Court did this in order to apply their 2nd Amendment decision, from just the preceding term, in District of Columbia vs. Heller, which also struck down down handgun prohibition the Court viewed as protected by the 2nd Amendment.

However, as summarized in the Court's syllabus in Heller:

Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale of
arms. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.
There is a great deal of leeway for reasonable gun regulations that we need but don't have, if our politicians will step up at the City Council meetings, or the County Commissioners, or the State Capitol or in Washington. If they will just step up and fight back and lead, to take control of our communities and reinstate our Constitutional right to feel reasonably safe in our homes and streets and cities and towns. We need our culture to stop producing these Ninja assholes armed like Matrix avatars who like shooting up schools and meetings and places of worship. Other cultures have learned how not to produce very many of these deeply defective or damaged individuals. Why can't we? The 2nd Amendment is only a bar to prohibition of personal firearms suitable and commonly and widely used for self defense, a fundamental, but inherently narrow right.

The Supreme Court, for now, has left plenty of wiggle room for lawmakers to take reasonable steps to dial down the gun massacre danger in America. The Court has not prohibited blanket restrictions on some types of firearms, or of ammunition, or limits on numbers of weapons possessed (when is enough enough for self defense), or registration requirements, or waiting periods, or background checks, etc. The Court has not disapproved efforts to expand public interest in more effectively reducing and suppressing gun violence. The graph below shows such interest has been contracting for years as people have become  more inured, I suppose, to our gun riddled culture. We need political leaders who will turn this graph around.  

Are you listening President Obama.
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Comment Preferences

  •  Tip Jar (6+ / 0-)

    Aren't you glad that the clueless won't get a chance to run the country again, just yet? Yeah. Me too.

    by LeftOfYou on Sat Dec 15, 2012 at 01:18:54 PM PST

  •  This helps. (2+ / 0-)
    Recommended by:
    speak2me, Cartoon Peril

    And I mean that with complete sincerity. Good topic for discussion.

  •  Your title is flat out wrong (3+ / 0-)
    Recommended by:
    LeftOfYou, debedb, enhydra lutris

    and like many people you are misquoting the opinion of Oliver Wendell Holmes Jr. in the Schenck case.

    If the theater is on fire, yell 'fire" all you want.

    The relevant text is this:

    The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
    The key word is FALSELY

    "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

    by teacherken on Sat Dec 15, 2012 at 01:50:57 PM PST

    •  Please reread. (1+ / 0-)
      Recommended by:
      Eikyu Saha

      The title and related references are offered to illustrate an idea, not as black letter law. You accurately point out that, as in many other free speech contexts, it is the falseness of the speech strips it of protection. I apologize for making my point so unclearly to you.

      Aren't you glad that the clueless won't get a chance to run the country again, just yet? Yeah. Me too.

      by LeftOfYou on Sat Dec 15, 2012 at 02:02:14 PM PST

      [ Parent ]

      •  The falseness of the speech and the causing (0+ / 0-)

        of a panic strips the speech of protection. That does not per se outlaw or criminalize it. There is no prohibition on any yelling of fire in Schenk.

        I just addressed this bit of misapprehension the other day in this diary [ Negation}.

        I understand what you are doing, but I do wish people would stop it with the "can't yell fire" thing. To quote myself:

        What is the subject of the Judge's statement? The first amendment. The statement is about the first amendment, it is not about yelling fire.What about it said Amendment? It does not protect. The verb is to protect, and is used in the negative.  Is there anything in there about prohibiting or outlawing anything? No.

        We can recast the statement to make yelling fire the subject - "Yelling fire is not protected speech". The subject is now yelling fire, but the sentence is still about protection, not about legality or illegality. You don't need a degree in logic to simply follow the grammar.

        That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

        by enhydra lutris on Sat Dec 15, 2012 at 02:59:06 PM PST

        [ Parent ]

    •  Schek does nt criminalize yelling fire, (0+ / 0-)

      falsely or otherwise.

      That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

      by enhydra lutris on Sat Dec 15, 2012 at 03:02:31 PM PST

      [ Parent ]

    •  Overly technical, I understand just what was (0+ / 0-)


      You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

      by Cartoon Peril on Sat Dec 15, 2012 at 04:45:19 PM PST

      [ Parent ]

  •  Just carrying a firearm openly could be seen as (0+ / 0-)

    an act of intimidation.  In my state (Oregon) it's completely legal, so long as you don't point it someone, intend to commit a crime, disturb the peace, or carry it into a restricted area.

    Even so, I can't ever remember seeing a civilian openly carrying a firearm other than hunting or en route to target shooting.  You'd be asking for trouble if you just started walking around with a pistol or rifle for no particular reason.

    You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

    by Cartoon Peril on Sat Dec 15, 2012 at 04:49:23 PM PST

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