The obituary of Robert H. Bork in The New York Times (Dec. 20 2012) notes that, “In a 1971 article in The Indiana Law Journal, [Bork] argued that the First Amendment’s protection of free speech had been wildly extrapolated beyond the intent of the Constitution’s framers. In a starkly narrow interpretation, he said free speech existed to perpetuate the process of self-government; therefore, he wrote, only explicitly political speech about governing was protected.” That is indeed a tortured reading. Explicitly political speech about governing could be construed as narrowly as speech about whether the Senate should change the filibuster rule. To Hell with freedom of speech about everything else. But there is a striking comparison between Bork’s First Amendment and the Second Amendment as it relates to the recently re-ignited gun-control debate. The Second Amendment has indeed been “wildly extrapolated” by the gun lobby beyond its original intent. The crucial difference is this: the limited original intent of the Second Amendment is clear, and is thrown into relief by the massive social and technological changes since it was written, whereas the narrow reading of the First Amendment is almost certainly not the intended one, nor is that amendment so antiquated.
I’m not suggesting that Americans do not or should not enjoy a right to bear arms. That’s a settled tradition that won’t change anytime soon. Even the right of self-defense in one’s home is something we’re not ready to concede, never mind the facts that people in other countries don’t generally feel the need to keep guns in their homes, and they’re a lot safer, and that statistically, keeping a gun in one’s home increases the danger of one’s getting shot.
But we should remember that no rights ever exist in a vacuum. Every right implies a duty, if only to recognize the same right for others; and every right accruing to an individual implicitly limits in some way the rights of others – for example, the presumed right to live without fear of one’s neighbors or fellow citizens being armed to the hilt.
This is the sensitive issue that was raised recently when a newspaper in Westchester County, NY, published the names and addresses of lawful gun owners. I’m not sure the paper was wise to do that. But the fact is that owning a gun is a very serious and public act, right or no right, and legal gun ownership is therefore a matter of public record. So I’m not sure the gun-owners were wise to complain either. Owning a gun has consequences. It’s hard to give credence to their argument that publicizing it endangers them.
But the larger point is this: the right to bear arms has limits; and those limits need to be further restricted, as a matter of public safety, without prejudice to the Second Amendment and without any compromise of the public’s ability to use guns for self-defense, hunting, or sport. That’s the huge canard we’ve been living with for decades: that gun control abridges the rights of law-abiding citizens who want to shoot or hunt. Who ever hunts with an automatic weapon?
Let’s be clear what we are talking about. The First Amendment states that “Congress shall make no law abridging the freedom of speech, or of the press…”
No law. Of course, Congress has made laws restricting hate speech, incitement, slander, and so forth. But generally speaking, you can say what you want in this country, and not just about the government or (as Bork would have had it) the governing process.
In the case of the Second Amendment it is quite otherwise. In the version passed by Congress, that Amendment reads: 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.
What that meant, in 1787, was that citizens could keep a musket over their hearth in order to help their communities by joining a militia to defend against an Indian attack. The kinds of powerful and/or concealable weapons we have today were unimaginable at the time, nor was the idea of a citizen going on a rampage and killing 20 children. And in all the years I’ve lived in Lower Manhattan, the Algonquin whose land it used to be (and whatever their other grievances) have never attacked. Not once.
The Framers couldn’t have foreseen the communications technology we have today either, but much of that technology enhances freedom of speech (not all of it or in every way). And iPads aren’t a threat to public safety in any case.
Given our traditions of hunting and interpersonal violence, and our ethic of self-reliance, one can argue that a right to bear arms is fundamentally American and should not be eradicated. We are a cowboy nation by choice.
Nevertheless, the archaic Second Amendment, as written, is consistent with the ban of many types of weapons or ammunition. On a narrow, Borkian reading, it doesn’t say that we couldn’t ban all bullets; but that would be an unreasonably strict construction of the Founders’ intentions. Instead, we could just ban all bullets for semi-automatic and automatic weapons, armor-piercing bullets, etc.
One can scarcely say the same thing about the First Amendment. “Congress shall make no law 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.” Unlike the Second Amendment it’s never going to look like a burdensome relic.
Since the Newtown, Connecticut massacre, the NRA and many pro-gun conservatives have discovered their new religion: mental health. It’s laughable how mental health has suddenly, and for the first time, become their alternative to new gun laws. How about this for a mantra instead: Let’s do whatever it takes, consistent with a reasonable construction of the Second Amendment, to save lives and prevent more Newtowns.