Monday, March 24, 2008

"Reasonable Restrictions"

Just a little something that's been gnawing at my gut for while...well, since last Tuesday, anyway. I'm sure someone better versed in the law than I am has touched on this already, but here's my version.

From the DC v. Heller oral arguments:

JUSTICE SCALIA: The freedom of speech that was referred to in the Constitution was also "the" freedom of speech, which referred to the pre-existing freedom of speech. And there were indeed some restrictions on that such as libel that you were not allowed to do. And yet we've never held that simply because it was pre-existing and that there were some regulations upon it, that we would not use strict scrutiny. We certainly apply it to freedom of speech, don't we?

GENERAL CLEMENT: Justice Scalia, let me make two related points. One, even in the First Amendment context, this Court has recognized -- and I point you to the Court's opinion in Robertson against Baldwin, which makes this point as to both the First and the Second Amendment. This Court has recognized that
there are certain pre-existing exceptions that are so well established that you don't really even view them as Second Amendment or First Amendment infringement.


GENERAL CLEMENT: Like libel, and I would say like laws barring felons from possessing handguns.

I would think the reason most rational people don't view libel laws as an infringement on our First Amendment rights is because such laws do not restrict the freedom of people to speak freely, rather they address the irresponsible use of one's right to free speech. Libel laws punish the libeler. They do not, nor should they in a free country, prevent the libel from being spoken.

To the contrary, legislation that bars the carriage of arms by all persons focuses squarely on the possession of arms, and fails to acknowledge the difference between the lawful and unlawful use of arms. Such laws essentially punish the individual for the act of exercising the right, whether such exercise is carried out in a lawful fashion or with malicious, criminal intent.

Libel laws, in the context of this discussion, would be more analogous to laws addressing the unlawful use of firearms, such as existing laws that address the crimes of assault and battery, armed robbery, and gun trafficking.

Using the logic (for lack of a better term) of the DC gun ban supporters, a "reasonable" libel law would ban the use of the internet, by all persons, to communicate ideas, based on the existence of any number of websites on which slanderous or libelous statements had been published.

Contrary to popular belief, an individual does have the right to yell "FIRE!" in a crowded theater. Though, provided there is no fire, any individual who does so should expect to face legal and disciplinary repercussions (e.g. charges of inciting a riot or disorderly conduct). But, one's capacity to speak freely is not nullified or taken away by the owner of the theater upon the purchase of a ticket for admission. Would the supporters of the DC gun ban, based on their own reasoning, support a law requiring the physical muzzling of all movie-goers?

To strip the whole of the populace of the right to bear arms, under the suspicious pretense that such measures will prevent the aforementioned criminal offenses from taking place is to deny the rights and liberties of the law-abiding majority based on the illegal acts of the few.

This is not a "reasonable restriction" on the rights of free people, but the product of a tyrannical government.

This brings us to what is surely setting up to be the next big point of contention in the discussion of Americans' right to arms - the definition and scope of "reasonable restrictions".

What restrictions on the possession and carriage of arms are "reasonable", and should be allowed to exist at both the state and federal level?

There are many in the gun control movement who hold up Massachusetts' firearms laws as a shining example of "common sense" gun laws and an example upon which the other 49 states should pattern their own laws.

I doubt the same people would feel the imposition of a $200 tax on abortion services would be a "reasonable" restriction on one's "right" to terminate a pregnancy.

Or, what of a law to eliminate state-subsidized legal counsel for the indigent? They'd still have a "right" to counsel. They'd just have to pay for it themselves.

We know that many Bay State politicians are on record as opposing legislation that would require a person to show a photo ID at his or her local polling location, prior to being allowed to vote in a presidential election. They put forth the argument that much a measure would be tantamount to the levying of a poll tax - a clear violation of the 24th Amendment.

Yet, these same politicians are on the record as being ardent supporters of the gun laws of the Commonwealth of Massachusetts, which stand as a de facto ban on the possession of firearms by the poor, while they allow the wealthier middle and upper class residents of the state to possess firearms (though with many restrictions) at relatively less expense.

Even among those who do acknowledge the right of a citizen to own a firearm for personal protection, there are many who would have the people believe that a person's right to do so extends only as far as the end of his or her driveway. Thus, the supposed right to arms becomes another government-approved privilege, the enjoyment of which is restricted by law to the confines of one's home.

When rights are so severely restricted, or doled out only to the privileged classes, by a government so distrusting of its citizens, liberty and freedom are lost.

And, under no circumstances, whatsoever, can such a system or rules and regulations be deemed "reasonable" in a free society.