How screwed up is our 2nd amendment discourse? Just look at the 1st amendment!

[unblock]

The 2nd amendment recognizes that people have a right to guns (for purposes of this post I'll skip right past the whole militia tangent).

Well, the 1st amendment recognizes that people have a right to free speech.

Yet congress has regulated speech in many ways and we're fine with that. Can't invite a riot. Can't slander or libel others. Can't conspire to commit crimes. Can't threaten violence.

Most of constitutional law -- the interesting cases, anyway -- are struggles to find the right balance of the often conflicting goals and restrictions in the constitution.

And we get that with free speech. Free speech is good, but so is domestic tranquility and the general welfare. Some restrictions to free speech are acceptable in order to advance other from constitutional goals.

Same goes for the 2nd amendment. Some restrictions on guns are appropriate and acceptable in order to ensure domestic tranquility and promote the general welfare.

And guess what? This is not a controversial position, this is well established case law. The Supreme Court has always held that reasonable regulation of guns is constitutional. Some regulations may go too far, but the Supreme Court has never remotely held that there should be zero gun regulation.


Yet, try having that discussion with a right-wing gun nut (there are far more reasonable gun owners, notably on the left wing, including many here on du, who understand the point I'm making). These absolutists insist that no gun regulation is constitutional based on their interpretation of the 2nd amendment in isolation and all discussion ends there.

It's an impossible fantasy, little else in the constitution works that way, but there's no getting through to these people.

The real challenge for constitutional scholars and justices is exactly how do you define when a gun regulation has gone too far. And that's where the daily tragedies can factor in to the equation.

Free speech can be curtailed in order to ensure an orderly exit from a theater.

Some reasonable regulation should be enacted to reduce the likelihood of these horrible tragedies.

[SunSeeker]

1. K & R

[no_hypocrisy]

2. Here's the problem at hand:

The First and Second Amendments have become blended like scrambled eggs where you can't tell the white from the yellow. Instead of using words, instead of finding a forum or a platform, bullets are used to express rage, derangement, and plain logical fallacy (e.g., the use of threat and/or violence to "prove" the truth of one's beliefs).

[aikoaiko]

3. Our restrictions to the 1st and 2nd are consistent with our notion of individual liberty.

[Orrex]

5. Sort of, I guess.

[kentuck]

4. When they become rational people....

then we can talk.

[Lee-Lee]

6. What if we regulated the First Amendment now to the extent we do the 2nd?

Seems if you are making a comparison between the two it should go both ways.

So:

If you are ever convicted of a felony or a misdemeanor punishable by over a year, or any crime of domestic violence, you lose your right to free speech for life.

If you are ever adjudicated as mentally incompetent or ever involuntarily committed for mental health teatment you will lose your First Amendment rights for life.

If you are not a citizen of a legal permanent resident of the US then you have no First Amendment rights.

If you wish to be a dealer in books or publish a newspaper or a website or any other First Amendment related business you will be required to have a Federal Soeech License, it will only be issued after an extensive background check all the way down to checking your zoning- if you want to be a part time newsletter publisher from your home but your city doesn't allow home based business you will be denied.

If you wish to buy or acquire any sort of speech materials from across state lines it must come from a Federal Speech Dealer, otherwise it's a felony.

If your state decides to add further regulation they can ban all exchange of speech or even materials to make speech between private citizens and require all people to only exchange speech via licensed speech dealers.

A few states will allow you to exercise your right to free speech outside your home without any special paperwork. Others will require a permit that requires paying a fee and passing a course and test. Some states will only issue a speech permit to those who they decide have a "legitimate need" to exercise free speech outside the home, as determined by a bureaucrat or a judge.

Some states will limit your speech tighter than the federal laws. Some will not allow you to buy more than a certain number of books or newspapers per day or month. Some will regulate the outward appearance of your means of speech.

Some states will require individuals wishing to exercise free speech be licensed before they engage in any speech at all or buy any speech related materials, even for use in the home.

All these varied state laws are the full responsibility of the person exercising their free speech to know and be familiar with if they travel, speech that is legal in one state Will if en be a felony in another and crossing that line opens you to arrest and prosecution even if you had no criminal intent.

Very high powered means of speech that can reach a large number of people quickly will be regulated under the Nationals Speech Act, subject to more strict laws and very cumbersome permitting and ownership laws plus special taxes that make it unaffordable to all but the richest people.

Size and physical attributes of books and written materials will be regulated by arbitrary laws that don't make much sense but an inadvertent violation of them will be a felony. For example a legal "pamphlet" can be any soft covered collection of written materials. A "book" will be a hardcover under the law. A pamphlet can have any number of pages, but a book must have a minimum of 160 pages. If you put a hard cover on a pamphlet you will commit a felony by making an illegal "short paged book". If you remove pages from a book to make it shorter that is also illegal. If you add a built in bookmark to a book with a hard cover it is legal, but if you add that same built in bookmark or even a temporary one to a pamphlet it's a felony creating a new class of speech known as an "Any Other Writing". These laws are not widely talked about or known but if you inadvertently violate one its punishable but up to 20 years in prison. (If this seems absurd to you, replace "pamphlet" with handgun and "book" with rifle, "cover" with "stock", and "bookmark" with "foregrip" and you have actual federal law in this country.)

Exactly where the line is between legal and illegal speech will be determined by the Bureau of Speech Technical Branch, who will issue their opinions in letters responding to questions. These letters will not be law but serve as a guide to what the same experts will testify to in court if you are found with the items. However the letters will be issued in often contradictory fashion, often with them saying something is legal at one moment and then months or years later saying it is not legal even though the underlying law has not changed, only their opinion. And they will refuse to make all the letters they have issued on the legality of various methods of speech available in one place or to the public to be able to research what is legal, meaning people in the speech business and private individuals have to try and share and figure it out.

Some states will mandate all speech be registered. Some will later ban certain books or music or movies and demand those who registered them or owned them either turn them in or destroy them.

[unblock]

7. Lol! Yeah, everything in the constitution is exactly the same

So, if the right to a speedy trial means within 90 days, then a 90 day waiting period for a gun is fine!

Maybe slavery is also ok for 89 days? Not sure how this blind equivalency thing works.

[Orrex]

8. Just a few weeks ago, a guy shouted out of his hotel window, and his words killed 50 people

And last month massive carnage resulted from a citizen petitioning the government for redress of grievances. And don't get me started on the bloodbath caused by that peaceably assembling group.


Facile 1:1 comparisons between the 1st & 2nd amendments are disingenuous and silly. Nevertheless, it's a favorite tactic of gun advocates, especially when they're leaping to the defense of their guns in the immediate aftermath of a mass shooting.

[sarisataka]

9. There have been more

Than a few suggestions around here lately that free speech is dangerous and should be severely restricted or eliminated

Perhaps all freedom is dangerous. Should we just trust the current administration to do what is best for us? I'm sure they would like that power.