Restraint of our First and Second Amendment Rights
First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Even though we have freedoms guaranteed by the First Amendment, here are some of the restrictions on our First Amendment rights. None of the rights given to American citizens under the Bill or Rights are absolute or unrestrained. Here are some of the things that we are not permitted to do.
FREEDOM OF RELIGION
- Engage in ritual human sacrifice (virgin or otherwise)
- Stone anyone to death for sinning
- Engage in any hate crimes based on the victims religious background or beliefs
- Discriminate against anyone based upon their religious background or beliefs
- Force anyone to convert to your religious preferences
- Wage any sort of holy war against those whose beliefs differ from your own.
FREEDOM OF SPEECH
- Lie under oath
- File a false police report or give false information to police
- Commit fraud or extortion
- Claim immunity from libel or slander
- Yell “Fire!” in a crowded theater
- Engage in false advertising or false labeling
- Make bomb threats
- Threaten the life or safety of any individual for any reason
FREEDOM OF ASSEMBLY
- Start or Join in a riot
- Join any criminal conspiracy
- Join any organization intent upon the destruction of the government
Now, let us think about how this notion applies to the Second Amendment.
Second Amendment: 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.
Can anyone seriously argue that the right to bear arms does not come with similar restrictions?
America’s Gun Violence
Let’s start with the fact that there are 300 million guns in the US, or almost one gun for every man, woman and child. There have been thirteen mass killings using guns in 2012, and the year is not even over yet.
UPDATE: There have now been FOURTEEN mass shootings in the US in 2012, and the year STILL is not over.
Even the NRA is now proposing “solutions” to this crisis and I am glad that they are! We need to come together in civil discourse to discuss solutions, welcoming all parties so that somehow we can get beyond the partisan bickering and break the impasse of gun violence.
This is a complex problem with many facets. There are no easy answers or bumper sticker solutions. Solving this problem will take a mutual effort and the willingness for everyone to give up their “talking points” for the broader public good.
Wayne LaPierre of the NRA has said that a good guy with a gun is the only way to stop a bad guy with a gun. If only the world were that cut-and-dried, with good guys wearing white hats and bad guys wearing black hats.
Think about the Trayvon Martin case. Here, the “good guy” is out on neighborhood watch, protecting his neighborhood from the “bad guys”, meaning African-American teen-aged boys. The tragic result of George Zimmerman’s vigilante justice was the death of a seventeen-year-old boy whose only crime was to go to the store to buy some Skittles while wearing a hoodie.
Zimmerman’s defense is now that Martin attacked him, and he shot Martin in self-defense. This is to suggest somehow that Martin had no right to defend himself from the gun-toting thug who was stalking him. Now, could someone please tell me who was the “good guy” and who was the “bad guy” and how are we supposed to tell the difference in a life-and-death situation?
Neighborhood Watch programs were designed to be extra eyes and ears for the Police Department. There is nothing in this program to justify gun-toting vigilantes. While some would argue that Zimmerman had the right to carry a gun on the street, no-one would suggest that he had any rights to make demands upon his victim, such as ordering him to halt. He had no right to accost him, to question him, or to engage him in any non-consensual manner. Is it any surprise, then, that Martin tried to fight him off? And did not Martin have the right to use any force to repel his attacker? What is clear to everyone is that if only Zimmerman had stayed in his truck, Martin would still be alive.
If we say that we want to be protected by gun-toting vigilantes, then how do we make sure that these people are qualified? Should we require that they undergo police academy style weapons training? Do we insist that they have continuous weapons training including target practice? Without such training it is easy to see that these people would be a menace to society, and not a source of protection.
There was a recent episode in New York City where the police showed up to deal with a shooting. The police ended up wounding nine innocent bystanders. If the police do this much collateral damage, then just think how much damage could be done by untrained, undisciplined, gun-toting vigilantes.
We can envision a lock-down incident in a school. The principal retrieves a gun from a locked cabinet in the school office. The principal breaks the shrink-wrap on the box, pulls the gun out and starts reading the instructions. The next step would be to find ammunition for the gun (stored in another locked cabinet for safety reasons). Then, the principal would try to figure out how to load and fire the weapon. When you think about it, this person is probably not the person that we want defending the school.
Now, imagine the situation at the Aurora Colorado shootings. The theater is dark except for the light from the screen. The movie soundtrack is full of gun shots and explosions. Then the gunman enters and throws smoke bombs. At first the audience thinks that the real violence is simply enhanced movie violence. A few pro-gun folks have told me that what was needed was a few dozen armed vigilantes in the theater to stop the killer. But it is hard for me to believe that this would actually be helpful. Given the smoke and the darkness and the violent movie setting, the thought of more guns joining in the mayhem would seem only to increase the death toll, not to limit it.
One solution that everyone seems to agree about is that we need to keep guns away from crazy people. No-one would disagree with that. The problem is, however, how to we decide who is too crazy to own or have access to a gun? Just like the “good guy” “bad guy” debate, it is not obvious at all who should be allowed access to guns.
The simple truth is that most of the recent shootings have been carried out by people with no criminal or psychiatric record that would preclude them from owning guns. But just because a person has not yet been convicted of a serious crime, or been confined to a mental hospital, does not mean that they are fit to own and handle guns.
There are countless people out there who are unstable, deranged, or otherwise mentally impaired. Some are psychologically withdrawn; others have violent tempers. There are racists, misogynists, homophobes, psychopaths, sociopaths, and a host of others who are a menace to society. There are criminals who have not yet been caught, and hence have no criminal records. There are terrorists motivated by politics, ideology, ethnicity, tribalism or other special group affiliations. Meth addicts or other types of drug abusers can create extreme mayhem without warning. We know that drunk drivers can wreak havoc on the roads. Imagine a drunk with a grudge and a handgun and the damage that she or he could do.
Even “good guys” can snap. They might be facing unbearable stress such as a loss of employment, or finding out that their partner is having an affair. Or perhaps they are having a reaction to their medications. Toxins, chemicals, allergic reactions, viruses, and some bacteria such as syphilis can affect the mental health of even the most stable of persons. Something as common as diabetes can cause severe mood swings, violent outbursts, and even a condition resembling a drunken stupor.
I am sure that most of us could find five or six of our friends to vouch for our character and mental stability, but that would not make us safe. The simple truth is that all of us are nuts, or at least all of us are vulnerable to going nuts.
In the Sandy Hook case, the shooter was using his mother’s weapons. So, even if the shooter could have been stopped from buying guns, there would be no way of stopping him from acquiring guns from friends or family members.
All of this is to suggest that there is no practical method of keeping guns out of the hands of crazy people.
Our Eighteenth Century Constitution
The world, and this nation, was a much different place back in 1787. The changes over the past 225 years are indescribable. It is hard to understand the passion of the Tea Party and other conservatives to return to an 18th Century viewpoint of government. Do these antiquarians realize that the original Constitution allowed for chattel slavery? And that suffrage was limited to white, male, property owners? Have we learned nothing in the past 225 years?
Even in its amended state, The Constitution is still showing its age. What made perfect sense back in the 18th Century makes little or no sense today. In the 18th Century America was much like the European Union of the 21st Century; it was a collection of sovereign states struggling to work together for security and economic development. It took the newly minted Unites States of America until after the Civil War to decide that it was one nation, and not a loose collection of states.
The Constitution never mentioned such things as NASA. We spent much of the 19th Century arguing over whether we could have a central bank or not. George Washington kept the entire Executive Branch of the federal government in two filing cabinets. The only communications network was the post office, as established in Article I Section 8.
Some would say that the Constitution has served us well over the past 225 years. However, there are distinct signs of its increasing dysfunction. If the Constitution were to be written today it would be a much different document. Listed below are some highlights of changes that might be in order.
In 2000, the will of the nation as expressed by the voting population was thwarted by the dangerous and antiquated Electoral College. There were a whole series of problems in the election in Florida. Because of the Electoral College, Florida got to decide on its own who was to be president. Just to cite one of the many problems, “butterfly ballots” in Dade County caused 35,000 votes for Al Gore to be mistakenly cast for Patrick Buchanan. Even Buchanan himself conceded that these votes rightfully belonged to Al Gore. But there was no way to fix them. In the final tally George W. Bush won the state and the presidency by 537 votes in the state of Florida.
With a tight and hotly contested election underway now in 2012, the Electoral College may once again thwart the will of the people and elect the candidate that came in second in the popular vote.
There are so many issues with the Electoral College that one scarcely knows where to begin. One issue is the “unfaithful elector,” who may fail to vote his state’s preference. This could be done for partisan reasons, or perhaps just to throw a monkey wrench into the entire proceedings.
If you are a Republican in California or a Democrat in Texas there is no need to vote for president at all in 2012 as your vote will not be counted. The only way to make your vote count would be to transfer your legal residence to a swing state such as Florida or Ohio.
As recently as the Reagan Administration, the Constitution was thought to link the “right to bear arms” to “well regulated militias”. Indeed, the very wording of the Second Amendment seems to make that point perfectly clear.
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.
More recently, the Supreme Court on the urging of the National Rifle Association has taken that passage to mean the private use of unlimited firepower under any circumstances. While it is understandable that some people would want to own hunting rifles, and guns for home defense, there can be no justification for military assault style weapons, armor-piercing bullets, or large 100-shot magazines such as was used at the Aurora, Colorado shooting.
For the sake of argument, even if we accept the NRA’s position that there is no link between the “right to bear arms” and “well regulated militias,” it seems inconceivable that the “right to bear arms” was ever meant to be an absolute. Freedom without restrain is anarchy. The Supreme Court has drifted towards anarchy in the issue of gun control. What will our future hold if this drift continues?
There must be balance in all things. We must always balance freedom with control to create a well-regulated society where all of us can pursue our own dreams in safety. What kind of society do we create if we have to worry about being shot to death in a movie theater, or in a house of worship?
The Preamble to the Constitution sets out one goal of government as being to “promote the general welfare,” and to “insure domestic tranquility.”
If we allow private citizens to amass and use military style assault weapons then we risk the loss of government control altogether. We could become a “failed state”, such as Somalia, Columbia or Pakistan, where power is held by heavily armed war lords and their soldiers, where government is either non-existent, as in Somalia, or unable to govern much of its territory. Surely not even the NRA would want such an outcome.
Free speech is another area in which we need to balance freedom with restraint. Free speech, very much like the “right to bear arms,” is often construed as an absolute right in the eyes of the Supreme Court. And such absolutism has created many senseless and preventable instances of abuse that could have been prevented.
Free speech as found in Amendment I of the constitution clearly seems to be tied to political speech.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
My background is not in law, but rather in theology, biblical scholarship, and sacred history. As a biblical scholar I learned to do exegesis on ancient texts so as to discover their deeper meanings.
When I use my exegetical tools on this passage I find that it is clearly talking about political speech. It is tied to petitioning the government for the redress of grievances.
There are a few things that should not be considered “free speech” under the constitution:
- Commercial speech
- Symbolic “Speech”
- Hate speech
- False speech in the public arena
If the speech is for commercial purposed than clearly it should be regulated. There should be regulations preventing specious promises, distortion of facts, and all sorts of deceptions in the public marketplace.
The courts have ruled many form of action are permissible under the rubric of “symbolic free speech.” Examples include everything from panhandling, to flag burning, to going topless. Panhandling should be seen as a commercial activity and hence subject to regulation. Going topless does not seem to be “speech,” and does not seem to involve the redress (no pun intended) of grievances with the government. Flag burning is the kind of topic that should be discussed as we seek to explore the boundaries of legitimate free speech.
Europe has very tough laws against “hate speech.” Hate speech in the US is tragically allowed under the rubric of “Free Speech.” Hate speech involves such actions as marches organized by white-supremacy groups in order to harass, threaten and intimidate minorities. Hate speech is made by a sick “church” that disrupts military funerals in order to protest the presence of gay persons in our society. Can you imaging the pain of losing a loved one who has made the ultimate sacrifice in serving our country. And then, can you imagine the horror of an anti-gay protest turning a memorial service into a firestorm of abuse?
Hate speech is the taunting and bullying that causes many children, youth and young adults to commit suicide. Hate speech is the use of racial or sexual epitaphs.
The First Amendment talks about the right to “peaceably to assemble.” There is a great difference between a protest and a riot. Similarly, the concept of “peaceably” should relate to free speech as well. Free speech is meant to engage (peaceably) in political discussion, not to bully, threaten, harass and intimidate.
And once again, the Preamble to the Constitution sets out one goal of government as being to “promote the general welfare,” and to “insure domestic tranquility.”
False Speech in the Public Arena
The “Stolen Valor” law was intended to prevent people from claiming military honors under false pretenses. One candidate for public office claimed that he held the Congressional Medal of Honor even though he had never served in the military. The Supreme Court said that his outrageous lie was protected “free speech.” The government should have the right to regulate such egregious misrepresentation of the truth. Outrageous lies ought not to be given protection under the rubric of free speech.
We have laws against perjury. No “free speech” defense is allowed as justification.
The Reapportionment of the United States Senate
This is one of the most undemocratic provisions of the constitution. Individual states that modeled their upper houses after the US Senate were told by the US Supreme Court that this was unacceptable. Iowa was one such example. Each of the state’s ninety-nine counties had one state senator.
The apportionment of the US Senate may have made sense in the Eighteenth Century, when we were a collection of sovereign states. But it is an undemocratic anachronism today. If this style of apportionment is illegal for the Iowa Legislature it should be illegal for the Congress as well.
The Role of Government
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
This would be a great time to look at the role of government and what we would like to see it do in the 21st Century. NASA once again comes to mind. Should not one of the functions of government be to support basic research?
Our nation was made great due to a free system of public education. And now that free public education that made us great is under attack.
Preservation of the global environment is a critical issue for our survival. In the 18th Century the world’s resources were seen as infinite and inexhaustible. Today we know that we are living on a small green and blue space ship with no chance of replenishment. If we burn through our resources or poison our habitat we have no chance of survival.
Infrastructure was mentioned in the Constitution under the establishment of Post Offices and post roads. Surely it is time to expand our language in this section.
We need to take the Preamble more seriously. Why do conservatives skip over the wording, “promote the general Welfare.” Does not this require a lot of government responsibilities that we should take seriously?