Prior restraints on speech and guns enable tyranny

June 14, 11:36 AMGun Rights ExaminerDavid Codrea

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 Courtesy Oleg Volk, A Human Right

We've seen how some would like to exploit the Holocaust Museum shooting to erode liberty. We've seen how some would like to enact preventive measures against what they perceive as "hate speech" to the point of rounding up it's "promoters."

Which brings us to a question I said I'd explore today: At what point do others have a right to intervene with our freedom of expression? And what does that have to do with "gun rights"?

A piece I wrote ten years ago opens the door to that conversation:

You CAN yell "Fire!" in a crowded theater

Even the First Amendment doesn't give us an unrestricted right to free speech, say those who would eliminate the Second. You can be sued for libel or slander if you defame someone in print or speech. You can't threaten people. And you can't yell "fire!" in a crowded theater.

Ergo, "reasonable" gun control laws are not only necessary, but constitutional.

As usual, such calculated weasel-wording will elicit nods from audiences conditioned to accept anything uttered by a talking head or printed under a screaming headline as the final authority. And, as usual, if one probes a bit beneath the surface, the misdirection and outright deception represented by this line of thinking isn't hard to ferret out.

The first flawed premise is that the Bill of Rights "gives" anything at all. It does not; it merely articulates specified (but not all) unalienable rights that are inherent to the condition of being human, that predate the formation of government or the adoption of any constitution, and that may not properly be deprived from full enfranchisement save when they are abused to the injury of others.

In other words, you can't be muzzled beforehand. You CAN yell "Fire!" in a crowded theater. Any time you feel like it. The government can impose no prior restraint on anything that you may say or write. To do so violates your unalienable rights under the Constitution; the only ones bound by prior restraints in such matters are the government.

I would, however, advise that there actually be a fire. Because if there's not, it's proper for your reckless action to meet with a penalizing response. And if someone is threatened or injured, it's just to expect punishment for your actions and restitution for your victims.

But you can still threaten your neighbors and coworkers, and shout from the rooftops whatever fabricated slur you want about anybody you choose, or publish libelous remarks impugning the good name of the most exalted among us. Any time at all. For instance, if I want to say that Rosie O'Donnell is a...wait, that's not a good example--it has to be untrue.

The point being, you need to do the crime before you do the time. If you harass, intimidate or terrorize someone with menacing words or demeanor, or if what you say or write is false and done with malice or reckless disregard, you've got a world of hurt coming your way, and deservedly so.

Like it or not, and those who would disregard it most certainly do not, the same holds true for the Second Amendment. You bet there are legitimate and just restraints that society can impose once you menace or harm someone, or otherwise prove yourself to be incompetent or untrustworthy. But until such time as you do, your right to keep and bear arms may not be infringed.

And like it or not, just as we can't require a permit for you to speak your mind, or impose a waiting period before you can purchase a newspaper, or demand that you register your video purchases, just as we can't pass laws prohibiting concealed crucifixes, the same holds true for guns--or at least should.

But that's not the same, cry the gun haters. The only purpose of guns is to kill!

Demonstrably not true, but so may words and ideas, unless you think the despots of the past and present have rounded up and dispatched their victims by themselves. And just as words can also provide deliverance, so too can guns. They do in this country on a daily basis, to the tune of up to 2.5 million times* a year.

This leads us to the final flawed premise; that any of the 20,000* "reasonable" infringements constructed in the minds of headline-seizing politicians, and enacted to date at the federal, state and local level, have made society safer, or have kept the predators among us from wreaking carnage at will.

Is there anyone who seriously thinks law number 20,001 will be the one that finally works?

* I am aware there have been challenges to these numbers since this was written. Professors Kleck and Lott have proven capable of addressing their critics, and they have done so on many occasions. The point is, there are a lot of defensive gun uses and a lot of "gun control" laws. The former is generally excluded from any discussion about "costs" of "gun violence." The latter is generally excluded from any proposals for new edicts. That said, this article is intended to explore prior restraint of rights, and that is where I hope any discussion focuses.

 Also see:  "Hatred and the far right originates from the left," by Los Angeles Gun Rights Examiner John Longenecker.