Regulating Constitutional Rights and Freedoms

Recently, national firearms magazine Guns & Ammo came under intense fire (pardon the expression) from its readership for publishing an editorial abstractly advocating for tighter gun control regulation.  As any organizational decision maker should have easily predicted were they paying just the slightest attention, the market reaction to such a piece was decidedly unfavorable.  Indeed, the backlash from such a highly homogenous readership was so ferocious that the author, Dick Metcalf, was subsequently terminated and the editor-in-chief, Jim Bequette, has since resigned.  This reaction is not a political one, as some have implied, but rather one of simple economics: if an organization wishes to broker to a certain audience in free exchange for revenue, then that organization must give its consumers what they want or suffer the adverse consequences (this is why mainstream media is so dramatically polarized to their respective audiences as well).


But regardless of the outcries of “bullying” and “intimidation” from the article’s anti-gun proponents, the article controversy itself is not the central issue of this post.  Free market consequences, both good and bad, to exercises of free speech are perfectly legitimate in a free society, and are inherently self-regulating.


No, my issue is not with the controversy per se or even that Metcalf “dared” to write his seemingly contrary opinion in an obvious pro-gun magazine.  My issues lay with how people in general irrationally reconcile their opinions and how Metcalf, as just one specific example, draws factually inaccurate conclusions and issues dubious claims in support of those opinions.


In the articled title “Let’s Talk Limits: Do Certain Firearm Regulations Really Constitute Infringement?,” Metcalf first asserts that regulation “is, in fact, the initial criterion of the [Second] [A]mendment itself.”  But this statement highlights a historical ignorance of simple linguistics that sadly confuses modern usage of the term regulation unilaterally with those of antebellum America.  It is this ignorance, in its many forms, that most predominantly facilitates the modern expansion of the State’s power at the expense of the rights and freedom of the individual (i.e., “Who controls the past controls the future: Who controls the present controls the past”).


This corruption of language, purposeful or not, belies the historical reality: that regulation, as commonly used during the timeframe in question and throughout the Constitution, the Federalist Papers, and the Anti-Federalist Papers, often means simply to promote fitness, proper working order, and readiness – literally, to make regular – not to forcefully restrict or limit by law, decree, or coercion.


Were the latter interpretations true, then certainly the words of “A Farmer” would have far different meaning than they clearly were meant to: “Secure to yourselves and your posterity the jewel of Liberty, which has cost you so much blood and treasure, by a well regulated Bill of Rights, from the encroachments of men in power” (emphasis added).  Another example comes from “Publius” (likely James Madison, the reported chief author of the Constitution):


How could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation?  The means of security can only be regulated by the means and danger of attack (emphasis added).


Even Supreme Court Associate Justice Antonin Scalia noted for the majority in District of Columbia v. Heller (2008) that “the adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training (emphasis added).


Yet, were one still inclined to interpret regulation in the modern vernacular, the final component “shall not be infringed” of the operative clause serves as the explicit regulatory verbiage of contextual relevance in any event.  One cannot genuinely reconcile modern proposals for all-out bans with an inclusive and explicit regulation prohibiting infringement against “keep[ing]” and “bear[ing].”


What is the more central point of this post, however, is that Metcalf perpetuates a common illogically analogous trope, without recognition of the critical fact that he figuratively compares apples to oranges:


The fact is, all constitutional rights are regulated, always have been, and need to be.  Freedom of speech is regulated.  You cannot falsely and deliberately shout, ‘Fire!’ in a crowded theater (emphasis added).


Freedom of religion is regulated.  A church cannot practice human sacrifice (emphasis added). 


Freedom of assembly is regulated.  People who don’t like you can’t gather an “anti-you” demonstration on your front lawn without your permission (emphasis added).


To be fair, Metcalf did not specifically endorse any pending or as yet nonexistent regulation (modern usage) that he believes fits the above analogies, so it is not appropriate to assume a straw man argument oriented toward specifics hypothetically attributable to him.  That said, however, this general argumentative approach remains perhaps the most tired and logically fallacious, and thereby abused, of adages adopted by gun control proponents in their incremental pursuit of blatantly restrictive measures – measures that have consistently and demonstrably proven to avail no appreciable benefit to the ostensible crime prevention objective(s). To that end, it is worth evaluating whether the heart of Metcalf’s “centrist” argument – that government regulation does not necessarily constitute infringement – marries well with the more commonly shopped forms said regulatory proposals take, namely bans or restrictions on ownership and/or possession of certain items.


For sake of this argument, let us (incorrectly) assume that the Constitution’s language endorses regulation in accordance with Metcalf’s (and others’) interpretation.  The analogies listed above still do not lend themselves to outright restrictions on owning, possessing, and/or carrying certain types of firearms, magazines, or ammunition – or in other words, things.  These examples restrictively regulate behaviors that directly infringe upon others’ rights, a fundamental distinction that is so often lost, intentionally or not, on society’s proponents of ever-increasing gun control over law-abiding citizens.


For example, screaming “Fire!” in a movie theater when none exists is more accurately analogous to discharging a firearm in a movie theater for an illegitimate reason(s) – including purposeful murder or just plain lunacy or negligence.  Naturally, the incorporated negative pregnant affirms legitimacy and a legal right – perhaps even a moral obligation – to scream “Fire!” when appropriate, which is to say when alerting others to the existence an actual fire.  As such, and to continue an accurate analogy, discharging a firearm in a movie theater for legitimate purposes – i.e., the defense of self and others – is as equally appropriate and ethical as yelling “Fire!” when one does exists.  It therefore follows that simply restricting things is not accurately analogous to this oft-repeated adage and thus not an appropriate regulation of behavior.  What would be more correctly analogous to bans of the ilk typically proposed would be an assertion that one cannot legally say certain words in a movie theater, or indeed speak at all depending on one’s gun control perspective, for fear that s/he might falsely scream “Fire!” or otherwise misuse that freedom.


The second regulatory example is self-evident in its insensible irrelevancy to today’s gun control debates and climate.  One cannot sacrifice humans – another illicit behavior – because it infringes upon the victims’ rights to be secure from illegitimate, aggressive violence wielded upon their persons.  Of course, to that end murder, whether perpetrated with firearms or otherwise, is obviously already illegal so what new regulation of the Second Amendment would be relevant to this example?  Note that while human sacrifice is universally banned in the United States, legitimate uses and general possession of clubs, knives, fire, axes, and other implements traditionally associated with such practices remain largely unmolested.


Metcalf’s final analogy illustrates a simple case of private property rights enforcement, one of the few truly legitimate pursuits of government regulation but again one largely devoid of relevance to most current gun control proposals.  The operative component to this example is the element of location; no one is entitled to protection from an “‘anti-you’ demonstration” on public property or on someone else’s property who authorizes it.  In this sense, even the general behavior is protected – only where that behavior is carried out is restricted in deference to the property rights of the individuals involved.  Again, this example has no relevance to Second Amendment regulation aside from simple enforcement of property owners’ rights to bar the carry or possession of firearms on their respective properties (such as the movie theater above).


Per the Schenck v. United States (1919) Supreme Court ruling, it is legal to regulate (again, modern usage) constitutionally-protected rights and freedoms under certain circumstances.  It is in this precedential ruling that Associate Justice Oliver Wendell Holmes, Jr. made famous the adage in question: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic.”  For sake of avoiding a digression, never mind the incorrect ruling itself or the fact that the case’s specifics and merits have nothing at all to do with yelling “Fire!” in a theater, the court nevertheless identified the key elements of consideration when rendering its ruling: “But the character of every act depends upon the circumstances in which it is done” (emphasis added).


All State regulation of rights and freedoms are legitimate only insofar as they regulate unethical behavior rather than the involved right or freedom themselves.  Further, all behaviors have an associated context that is directly relevant to their legitimacy.  Murder is an obvious immoral behavior; the right to wield lethal force in defense of one’s self and/or others is ethically legitimate and justly protected.  These are the key points acknowledged even by progressively statist Supreme Courts and often ignored when such adages are carelessly parroted in pursuit of infringing goals.


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