Constitutional Collision between the 1st and 2nd Amendments

Published 12:00 am Saturday, January 12, 2013

By Cameron Smith

Since the tragedy of the Newtown shootings, politicians and pundits have argued tirelessly that either the Second Amendment is inviolable or gun ownership should be further restricted to “legitimate” functions and limited inventories.

But the issue is about far more than guns. Our country is beginning to witness a head-on collision between the exercise of the First and Second Amendments.

The Second Amendment states, in part, “the right of the people to keep and bear arms, shall not be infringed.”

Most guns are designed to be powerful and even lethal. That is precisely what makes them useful for hunting, self-defense, sport shooting and military combat. The first lesson that gun owners learn is to always treat a firearm as if it is loaded. This respect for firearms avoids accidents and fosters a sense of needed responsibility.

But Americans favoring enhanced gun restrictions largely see the Second Amendment as enabling criminal gun violence, rather than preserving an important protection of personal liberty. Their basic argument is that gun owners should not need any more firepower than is necessary for certain “legitimate” functions such as hunting or sport shooting. Anything else is not worth the risk to society.

And many have tried to impose restrictions on the Second Amendment to mitigate that risk. One of the most risk adverse laws passed was the District of Columbia’s ban on handguns and requirement that all firearms be locked or disassembled in homes where they were legally owned. In 2008, the Supreme Court struck down the law as infringing the individual right to possess a firearm and use it for traditionally lawful purposes.

But this type of unconstitutional restriction fails to recognize that the problem with gun violence in America is not the Second Amendment; it is the abusive and criminal exercise of the right it affords.

While the tangible presence of guns opens the Second Amendment to scrutiny in the face of violent crimes, supporters of aggressive firearm regulation frequently gloss over the misuse of the First Amendment that also contributes to violent behavior.

The First Amendment states, “Congress shall make no law…abridging the freedom of speech, or of the press.” But what America’s founders largely viewed as protecting political speech from government intimidation has changed radically over time.

Our culture has a love affair with violence and crime. Consider video games like Grand Theft Auto, which, by its own title, glorifies criminal activity. Not only does it encourage players to engage in senseless killing, but it also encourages creativity in the mechanisms of death dealing.

For people who prefer their violence less interactive, the entertainment industry offers reels of films like the revenge rampage of Quentin Tarantino’s Kill Bill or Hostel’s minute-by-minute glamorization of torture and dismemberment.

And for Americans without video games or movie theatres, the Internet affords access to pretty much every type of violence humanly imaginable. Such “speech” rakes in millions for its peddlers, and most all of it is considered protected by the First Amendment.

What has changed more over the last half century: The kind of guns currently available or the sensitivity to violence in American culture?

The abuse of the right to keep and bear arms is increasingly fueled by an irresponsible exercise of the right to speak freely. As we continue to lose perspective on the value of human life and offer unending opportunities for violent fantasies, should we really be surprised when they become reality?

All of us need to recognize that our rights come with responsibilities. Whether implementing safe gun ownership practices or deciding what exercises of free speech we support, we must learn, teach and exercise discretion. “Constitutionally protected” is not the same as “morally right” or even “reasonable.”

The rights contained in the Constitution must be maintained because they are the fundamental principles for our free society. We protect them time and again, even when we clearly see the effects of their abuse, because we believe that preserving them is worth the risk.

Rather than simply defending our rights, we should begin to show better judgment in using them.

Cameron Smith is Policy Director and General Counsel for the Alabama Policy Institute, an independent, non-profit research and education organization.