“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.”
“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.”
These words should sound familiar to us all – they’re the first two amendments to the U.S. Constitution; the start of the Bill of Rights. The two passages seem pretty straightforward at first glance.
“Make no law…abridging the freedom of speech” couldn’t be simpler, right? Same with “shall not be infringed.” But to lawmakers and the courts, these words have been the subject of great debate for the entire life of this country.
Of course laws have been made that “abridge” speech. Libel laws, obscenity laws, noise ordinances, sign ordinances – they all weigh the rights of others with your right to free speech.
And of course the right of people to keep and bear arms arguably has been “infringed” upon. You have to have a permit to carry a concealed weapon, for example. You can’t buy or sell a fully automatic gun that wasn’t registered before 1986 – and if you want one of the legal ones, you have to submit your fingerprints to the ATF and pay a $200 tax. After much debate a few years ago, Idaho colleges and universities are still allowed to ban guns from their campuses.
So what do “abridging” and “infringing” ultimately mean? There are certainly many schools of thought and belief out there (including that they can only mean exactly what the drafters intended, an “originalist” view), but the reality of the matter is that they mean what U.S. citizens think they mean – and that meaning changes along with shifting politics, demographics, economics and all the other “ics” that make our country what it is at any given moment.
On a national scale, the current debate has been about the 2nd Amendment.
“We cannot mistake absolutism for principle,” President Barack Obama said in his second inaugural address this week, just a few days after he signed a slate of executive orders restricting guns and called on further action from Congress.
The next day, NRA President Wayne LaPierre responded: “I urge our president to use caution when attacking clearly defined absolutes in favor of his principles. When absolutes are abandoned for principles, the U.S. Constitution becomes a blank slate for anyone’s graffiti.”
“Absolutism,” when referring to constitutional debates, is a term of art. It’s essentially saying that when the Bill of Rights says “make no law,” it means it. But courts (and politicians) tend to interpret the words more broadly. They weigh competing rights. They prioritize ever-changing demands. Your right to reputation and privacy has been found to trump my free speech right to make up horrible lies about you and disseminate them in this blog (even though those rights aren’t quite as clearly enumerated in the Constitution as the rights to free speech and a free press).
Because if we were really talking about “clearly defined absolutes,” all Guantanamo detainments of American citizens might have been immediately released under the 5th and 6th amendments; the warrantless wiretapping and domestic surveillance activity created by the PATRIOT Act could have been immediately squashed under the 4th Amendment; and you could, say, paint the side of your house with a sexually explicit mural or go visit your friend in jail with a fully automatic weapon under your belt.
Many conservatives would argue that the 10th Amendment should give the states control over things like immigration, airport security, health care and even congressional term limits, because none of these issues are specifically addressed in the Constitution.
A lot of liberals would argue that if the death penalty doesn’t represent the kind of “cruel and unusual punishment” forbidden by the 8th Amendment, then what does?
My point is, there are historically gray areas, even if there aren’t in some personal views. But I’m willing to bet that even among the most hardcore among us, some parts of this great document blend away from strict black and white.
Here in Idaho, lawmakers are deciding how to regulate speech at the Statehouse and state grounds. When do you need permission to assemble? Can you carry signs? Do you have to leave the stairs at midnight? In some ways, they’re a bunch of reasonable ideas, weighing rights with other rights. Should we all have to pay the police and security to be on hand all night? If I reserve the front steps, is it right for a bigger group to just come in and push me away to silence me? Certainly it would be easy to argue that every one of these regulations “abridges” speech and assembly and the right to address your government.
How many of us would quickly say we oppose any restrictions on gun ownership, but not bat an eye at a slate of rules dictating when we can and can’t have our say at the people’s house? And conversely, how many would have the exact opposite reaction – decrying any move in the Statehouse to shut down free speech, but backing bans on semi-automatic weapons and large clips?
Here’s an interesting thought experiment (an old adjunct professor habit, handing out assignments): Take your views on the 1st and 2nd amendments and compare and explore them. I’d be interested to hear how folks out there look at these in conjunction with each other. (You advanced students can push that through the rest of the Bill of Rights.)
In the meantime, check out our Idaho Reports this weekend. I was feeling philosophical, and I had this conversation with Gov. Butch Otter – a man who has had to make many constitutional decisions in the Legislature, Congress and the governor’s office. He had some interesting things to say, I think. Whether you end up agreeing with him or not, you may gain some added insight – and that’s never a bad thing.