If you yell "fire" in a movie theater, you are exercising your
free-speech rights. Yet you are also causing a panic that will likely
lead to the harm of other people. Therefore, while each of us has a
right to free speech, that right is limited. In his book "On Liberty,"
the famous English philosopher John Stuart Mill referred to this
formulation as the "harm principle" -- that my rights end where
exercising those rights cause another person harm.
Here's the problem. Walking into a movie theater with a mouth and a working set of lungs does not threaten anyone. Neither does walking into a movie theater with a gun. Shouting "Fire" might cause a panic, and people might be trampled in the panic, thus, it's something you can legitimately be punished for -- unless there actually is a fire, of course. Likewise, shooting people in a movie theater -- or anywhere else -- is a criminal act that can be punished. Peacefully enjoying the movie with a concealed firearm on your belt doesn't disturb anyone.
Yet in many states in the United States today, it is perfectly legal to
buy and carry an assault weapon fitted with a multi-round ammunition
magazine -- a killing machine if there ever was one. And, tragically,
over the past year we have seen those weapons carried into a school, a
shopping mall, and, yes, a movie theater.
What creates the problem in those cases is not that the assault weapon was bought, or carried, or that it had a "multi-round ammunition magazine". The problem is that the person who did those things also did something else: he shot people, he committed murder. Murder is illegal, of course. Having already decided to commit murder, would any of those murderers be deterred by rules against buying or carrying an assault weapon?
Here, I'll give you a clue. The theater in Aurora? It was a posted gun-free zone. It wasn't legal to have a gun there. Didn't stop anyone. In fact, there's an argument that the killer chose the theater because it was a posted gun free zone.
Frankly, it's hard to imagine a danger more "clear and present" than
James Eagan Holmes' decision to carry his assault weapon into an Aurora,
Colo., movie theater. Yet until he used it, he had not committed a
crime. By contrast, had he simply yelled fire in that same movie
theater, he could have been arrested for inciting danger in that
theater. Does anyone really believe that yelling the word "fire" is a
danger more clear and present than the possession of a killing machine?
And yet critics of gun-safety regulations point to the Second Amendment --
which the Supreme Court ruled includes a right of individuals to "keep
and bear arms" [McDonald v. Chicago, 561 US 3025 (2010)] -- as
evidence that regulations like an assault-weapons ban are
unconstitutional. They claim that "law abiding citizens" can exercise
their Second Amendment rights by purchasing and carrying an assault
We can, and we do, peacefully exercise our right to keep and bear arms by owning and carrying firearms in 40 shall-issue states. People in those states who carry guns legally do not go on rampages. Blood does not run in the streets. You haven't seen us in the news. You probably have seen us next to you in the grocery store, movie theater, or shopping mall. You just didn't see our firearm, because it was concealed and not being used to commit murder. People carrying firearms lawfully are not the problem.
Yet the Second Amendment is not absolute -- just as the First Amendment
is not absolute. Claiming that limits on the Second Amendment are
unconstitutional is a misunderstanding of the Constitution, and the
Supreme Court's century-old jurisprudence on rights. The fact is every
right has limits. There are limits on the ability of a person to speak,
to worship, to assemble -- all grounded in the fact that some actions
endanger other people, and therefore those actions can be prevented. No
person has a right falsely to yell fire, because it would likely
endanger others. We should apply the same principle to regulate guns.
Having a gun does not endanger anyone. Shooting at them would. So would, say, being drunk while you carry your firearm, or handling it in a negligent manner. There is a difference, and we have laws to handle the cases of malice and negligence. But we don't arrest citizens who are capable of safely carrying firearms for their own protection.
Shall we ban certain brands of typewriters? How about laser printers, because they can produce printed text too fast? Or computers, because gosh, when you combine them with the internet, people, ordinary people!, can publish blogs that interfere with the message the officially sanctioned journalists are supposed to be sending.
There's actually a useful concept in First Amendment law that applies here. That concept is prior restraint
. Under the First Amendment, the government is prohibited from exercising prior restraint on First Amendment rights. It cannot stop you from speaking out. If your speech turns out to be shouting "Fire" in a crowded theater without a fire, they can punish you for creating a panic -- but they can't force you to wear a gag when you are going into a theater.
The same concept applies to firearms rights. We can punish people who misuse firearms criminally. We can't punish them because they "might" misuse a firearm.
The clear and present danger test, or the more recent "imminent lawless action test" -- which the Supreme Court established in Brandenburg v. Ohio,
395 US 444 (1969) -- are possible and appropriate tests for limiting the
right to bear arms. The Supreme Court has established this right as an
individual right -- regardless of the ambiguities found in the amendment
itself. Yet like all rights, the right to bear arms must be limited by
the safety of others.
Merely owning and carrying a firearm is not "imminent lawless action". Carrying a rifle and grenades -- assault weapon or not -- into a movie theater would raise my eyebrows, but let's not get caught up in the fantasy that making it more illegal would have somehow stopped the murderer. He was going into the theater to commit murder. There was no one there with a gun to stop him. Also committing "illegally carrying a weapon into a gun free zone" is going to register to the murderer as "Oh, good, I'll be the only one with a gun."
So, should we institute an assault-weapons ban? Surely yes, because a
person carrying such a killing machine is a clear and present danger for
There are literally millions of so-called "assault weapons" in the hands of honest, law-abiding citizens, police officers, and members of our military forces. Only a tiny fraction of those firearms are ever used in crimes.
The problem is not people carrying firearms. The problem is crazy people who want to commit murder.
Should we limit the number of bullets any magazine can contain? Surely
yes, because no hunter needs more than five rounds before replacing a
magazine. By contrast, such magazines allow mass murders like Adam
Lanza?s massacre in Newtown, Conn.
With a little practice, a magazine can be replaced in a few seconds. Lanza did so frequently -- more frequently than he had to, often discarding magazines that had as many as 15 rounds left. He had 20 uninterrupted minutes to commit his murders before the police arrived to stop him. Claiming that unarmed kindergarteners could have overpowered him while he changed magazines is offensive.
Like most spree killers, Lanza stopped when he encountered armed resistance. The sooner a spree killer faces someone else with a gun, the sooner he stops killing. When seconds count, the police are only minutes away.
20 minutes, to be exact.
If one of the teachers he killed had had a gun, fewer children would be dead today. If it saves just one life... The Newtown Board of Education wants to hire armed guards
Should we establish a
universal and thorough background check and waiting period? Yes,
because allowing someone with a clear record of dangerous use of weapons
to buy and possess another one is a clear and present danger.
If someone has a clear record of dangerous use of weapons, how will preventing them from buying another one stop anything? That person will just use one of the weapons they already own.The fact is, we already have a background check system in place. It is supposed to prevent criminals and crazy people from buying guns from licensed dealers, but we should not count on it to do so. Why not? Well, many states don't do a good job adding "crazy people" to the list of prohibited persons. More importantly, though, criminals don't obey laws -- including "crazy people planning mass murder". Adam Lanza didn't buy his guns legally -- he killed his mother to take her guns.
Should we ban all rifles and handguns? No, because the presence of a
rifle on a deer hunt does not usually represent a clear and present
danger to other human beings.
Neither does the presence of an AR-15 or a semiautomatic handgun with a standard capacity magazine at a shooting range.
Despite the misguided and ill-informed views of the leaders of the NRA,
can?t the rest of us agree that a person who carries a loaded assault
weapon with a multi-round ammunition magazine ? the purpose of which can
only be construed as attempting to kill other human beings ? is a clear
and present danger? It is time now for our politicians to do something
A person who is carrying a firearm but not shooting at people is not a clear and present danger to anything other than the clean underwear of a so-called journalist and constitutional scholar. The danger comes from the person, not the gun.