It’s Constitution Day, and in schools across the country, they are talking about it.
Well, probably not. For if there were serious discussions about the Constitution, they would have to include the Bill of Rights, and particularly the First and Second Amendments, two tenets of the document toward which the political Left is increasingly hostile. In recent times there have been allegations that social media platforms have tried to silence conservative voices, especially gun owners and one former president, for “violating community standards.”
Critics contend these “standards” are not listed anywhere, and they seem to have boundary lines made of sand.
The Bill of Rights doesn’t grant anybody anything. It places limits on government, i.e. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.”
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The establishment media is big on the First Amendment, so far as freedom of the press is concerned. You’re reading this thanks to the First Amendment. If a bunch of people want to gather at the city park and complain about the mayor or the city council, the governor, state legislature, the Congress or the president, so long as they gather peacefully, they are covered.
The First Amendment does not cover throwing bricks, smashing the windows of private businesses, setting fire to or looting those businesses, nor does it protect spitting on or physically assaulting police officers, or setting fire to someone’s automobile. It doesn’t cover damaging public property, including public buildings, and it certainly does not protect anyone who damages or destroys private property.
You can get up on a platform and call the president an “idiot,” and you can write an editorial saying public officials are dead wrong on the issues.
However, the same establishment media has become not so protective of the rights guaranteed by the Second Amendment. Indeed, many in the media who are zealously defensive of the First Amendment frequently treat the Second as though it were a regulated government privilege rather than an enumerated right.
“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.”
That doesn’t mean, according to recent rulings by the U.S. Supreme Court, states have a right to organize a militia. State’s don’t have rights. Citizens do. It means the right to keep and bear arms is an individual right guaranteed to the people so that they may have a militia, but that’s not all it means.
Citizens—the “people”—have a fundamental right to keep and bear arms for other purposes having nothing to do with militia service. The late Justice Antonin Scalia made that clear in his exhaustive majority opinion in District of Columbia v. Heller in June 2008.
Justice Scalia wrote, “‘Right of the People.’ The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase ‘right of the people’ two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not ‘collective’ rights, or rights that may be exercised only through participation in some corporate body.”
This “right of the people” is enshrined in plain language, and it “shall not be infringed.” That doesn’t mean the right can be willfully abused. Nobody has the right to use a firearm dangerously or carelessly, such as shooting at traffic lights, firing wildly in a crowded place, or opening fire on someone other than in self-defense. These things are not protected by the right to keep and bear arms.
But it is protected for someone to have a gun or even 50 guns. If that individual isn’t harming anyone or posing a danger to the community, the prevailing wisdom among gun owners is that it’s really nobody else’s business what that person owns.
Perhaps Associate Justice Clarence Thomas best put this debate into its proper perspective when he chastised his colleagues on the high court for not protecting the Second Amendment as vigorously as they have protected other rights guaranteed by the Constitution.
As noted by Reason in June 2020, Thomas argued, “In several jurisdictions throughout the country, law-abiding citizens have been barred from exercising the fundamental right to bear arms because they cannot show that they have a ‘justifiable need’ or ‘good reason’ for doing so. One would think that such an onerous burden on a fundamental right would warrant this Court’s review.”
Reason added that Thomas observed, “”this Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights. And it seems highly unlikely that the Court would allow a State to enforce a law requiring a woman to provide a justifiable need before seeking an abortion. But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the Court simply looks the other way.”
That will change Nov. 3 when the Supreme Court hears oral arguments in the New York State Rifle & Pistol Association’s challenge of New York’s restrictive gun control permit law. Perhaps the Second Amendment isn’t quite finished, yet.
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