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Reading the First and Second Amendment

The First Amendment, protecting free speech, freedom of the press, and freedom of religion, begins with the words “Congress shall make no law . . .”  The second Amendment ends with “the  right of the people to keep and bear arms shall not be infringed.”  I looked them up after hearing an argument that “The right to free speech does not include yelling fire in a crowded theatre” as a reason that specific categories of firearms could be legitimately controlled.

It isn’t a valid argument – “Congress shall make no law” does not say or mean the same thing as “shall not be infringed.”  You don’t need to be a philologist to know that the two phrases are different.

Years ago, L. Neil Smith wrote “Why Did It Have To Be . . . Guns?”  It’s worth reading. He explains why he isn’t really a single issue voter: “ all politicians—even those ostensibly on the side of guns and gun ownership—hate the issue and anyone, like me, who insists on bringing it up. They hate it because it’s an X-ray machine. It’s a Vulcan mind-meld. It’s the ultimate test to which any politician—or political philosophy—can be put.”

CBS quoted Biden:  the “2nd Amendment, from the day it was passed, limited the type of people who could own a gun and what type of weapon you could own.  You couldn’t buy a cannon.”  Two things – a private individual definitely could buy a cannon at the time the second amendment was written and passed, and despite the President’s comment “It Seems Like Most Of My Career I’ve Been Dealing With This Issue,” his problem may be that he has spent most of his career trying to find ways to infringe.

The first amendment reads:  “ 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.”  Seems pretty simple – Congress shall make no law on these topics.  The 14th amendment expands that limitation to the states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So let’s look at the second: “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.”   If you want to argue the militia clause, that’s fine – but the Heller decision ruled that it’s the right of the people – never said it was a collective right of the National Guard.

Basically, Congress never passed a law preventing you from yelling “fire” in a crowded theater –  the phrase “you can’t yell fire in a crowded theater” is from the Supreme Court, Schenck v United States (1919) and was not about yelling fire, but encouraging people to resist the draft during World War I.  My many times great-grandfather may have settled for a rifle, but could have purchased a cannon in 1790, and “shall not be infringed” is a pretty straightforward statement.  Of course, since I lack legal training, this analysis isn’t likely to stand up in a court.

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