Idaho Reports: Does your 2nd Amendment stance square with your 1st Amendment one? (And vice-versa...)

“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.

1359129067 Idaho Reports: Does your 2nd Amendment stance square with your 1st Amendment one? (And vice-versa...) Idaho Statesman Copyright 2014 Idaho Statesman . All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Citizenship

Greg, one point on your comments of Gitmo. Those people are not US Citizens and they are not within US boundaries- therefore the Constitution does not apply to them anymore than it applies to a Frenchman in Paris.

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It comes down to accepting Constitutional Orginalism or the idea of a "Living Constitution" evolving with society.

There are lots of examples where our laws violate the Constitution. It is not until someone wants to expend the resources to challenge the law that the question is resolved. And in some cases people accept the law violates the Constitution but the benefit provided is not worth the alternative. The Constitution allows itself to be changed by the people. By accepting something contrary to the letters of the Constitution inherently the people are allowing it to modified(amended). Body scans at airports is good example of this. WRONG, but people accept it. So most likely, if that were put to a vote, the populus would change the scope of our Constitution to allow for this ridiculous violation of privacy.

Americans in Gitmo

That's true of most of them, but I think there were at least three Americans there - most notoriously Jose Padilla: http://topics.nytimes.com/top/reference/timestopics/people/p/jose_padilla/index.html

I totally agree about the effort - nothing is declared unconstitutional without somebody going through a lot of time, effort and money to push the challenge through.

- Greg

For example

Good point, good to know.

And let's add here:
May 8, 2002: Padilla arrives at Chicago's O'Hare International Airport after an overseas trip, carrying $10,526, a cell phone and e-mail addresses for al-Qaeda operatives. He is arrested on a material witness warrant.

June 9, 2002: Padilla is designated as an "enemy combatant" and transferred to the Defense Department

In a US court, he was found guilty of a terrorist charge and is currently in prison.

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So perhaps Padilla is a case of a "knee-jerk reaction". So soon after 9/11/01 everyone was more than willing to violate people's rights in an attempt to accomplish something. Let's write this down as a classic example.

And now in 2013, here we are soon after another school shooting and the "knee-jerk reaction" will be ________.

Will there be one?

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People are broad-minded. They'll accept the fact that a person can be an alcoholic, a dope fiend, a wife beater and even a newspaperman, but if a man doesn't drive, there's something wrong with him.

Good food for thought

In spite of current events and opinion, I think most of our attention and work should be focused on the multiple dimensions of the rights enumerated in the 1st amendment.

Whatever the 2nd amendment was or was not intended to provide, and has been deemed to provide by practice and decision, the undeniable fact is that we have ample--more than enough--rights to gun ownership in this country, and nothing that has been contemplated or proposed will change that in any meaningful way. Outside of the four year old raging paranoia about Obama coming to take our guns, the argument is about how much more than enough.

The Bush/Cheney administration did lasting damage to 1st (and other) amendment rights. The Obama administration has unfortunately stayed that course.

Communist are taking over the

USA....Just be prepared for a fiscal meltdown and the very rocky road ahead. Times in USA are heading a different direction that I think most of us don't want.

Suuuuuuuuuuuuuuuuuuuure.....

C'mon Ugly, you can do better then you do in the football columns/

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People are broad-minded. They'll accept the fact that a person can be an alcoholic, a dope fiend, a wife beater and even a newspaperman, but if a man doesn't drive, there's something wrong with him.

The sky is falling!

You should add Duckling to your screen name.

The Sky is not falling ....

America is.

Keep following the advice of the New Messiah and the Helicopter and you will do just fine.

Well low information

Well low information Idahoans have clearly drank the opinion based facts of the conservative media.

The 2nd Amendment is not under attack. Your insatiable appetite to buy and keep guns is preserved for everyone in this nation. No one is going to take your guns, lets repeat it, no one is coming for your guns.....come on say it with me....!

Yes, required background checks and restrictions are placed on ownership of specific guns an ammo.

If your paranoid of background checks and government lists of who owns guns, then where was your intolerant anti-government public outrage when your conservative Idaho republican congressional representatives Risch, Crapo, Simpson and Labrador voted overwhelming for unlimited government surveillance and warrant-less wiretapping of our domestic society.

If your worried about who knows you own a gun, you probably should be worried more about the government data miners knowing were you go daily, who you speak with and what you buy at stores and what you write on the web, etc, etc....!

You’ll have your guns, but your won’t have the personal rights that their guns are supposed to be protecting.

Its getting disgusting listening to the hatred towards our nations democracy by the low information Idahoans who feed on the conservative fear and opinion based extremism of the fake moral high ground from one sided political agenda.

Ignorance is not patriotic or an American value!

Come on conservative taters try and think before you act on your fear based emotions and support a conservative movement political party who consistently legislates and votes against your personal freedom and rights.

You cannot have rights if you violate others'...

Tony is correct. You have to respect others and people who violate laws regarding violence and weapons should be excluded from ownership. That is what checks are for.

That guy that just got busted for felony possession and sale of weapons on Facebook (convicted felon banned from owning firearms) is the perfect example. It is legal OTHERWISE to sell a gun over Facebook, which is odd.

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People are broad-minded. They'll accept the fact that a person can be an alcoholic, a dope fiend, a wife beater and even a newspaperman, but if a man doesn't drive, there's something wrong with him.

I have the right to bare arms if I want to shave them but I dont

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People are broad-minded. They'll accept the fact that a person can be an alcoholic, a dope fiend, a wife beater and even a newspaperman, but if a man doesn't drive, there's something wrong with him.