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People carrying assault weapons pose a clear and present danger to others

REUTERS/Joshua Lott
In many states in the United States today, it is perfectly legal to buy and carry an assault weapon fitted with a multi-round ammunition magazine — a killing machine if there ever was one.

Almost a century ago, Justice Oliver Wendell Holmes Jr. of the U.S. Supreme Court declared: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic” [Schenck v. United States, 249 U.S. 47 (1919)]. The case involved the right to free speech, and Justice Holmes established the principle for the so-called “clear and present danger test.” Holmes’ idea was fairly simple: Every American citizen has the right to free speech — that right is unquestioned. But having the right to free speech does not give someone the license to endanger another person.

Matthew F. Filner
Matthew F. Filner

If you yell “fire” in a movie theater, you are exercising your free-speech rights. Yet you are also causing a panic that will likely lead to the harm of other people. Therefore, while each of us has a right to free speech, that right is limited. In his book “On Liberty,” the famous English philosopher John Stuart Mill referred to this formulation as the “harm principle” – that my rights end where exercising those rights cause another person harm.

Yet in many states in the United States today, it is perfectly legal to buy and carry an assault weapon fitted with a multi-round ammunition magazine — a killing machine if there ever was one. And, tragically, over the past year we have seen those weapons carried into a school, a shopping mall, and, yes, a movie theater.

Frankly, it’s hard to imagine a danger more “clear and present” than James Eagan Holmes’ decision to carry his assault weapon into an Aurora, Colo., movie theater. Yet until he used it, he had not committed a crime. By contrast, had he simply yelled fire in that same movie theater, he could have been arrested for inciting danger in that theater. Does anyone really believe that yelling the word “fire” is a danger more clear and present than the possession of a killing machine?

And yet critics of gun-safety regulations point to the Second Amendment — which the Supreme Court ruled includes a right of individuals to “keep and bear arms” [McDonald v. Chicago, 561 US 3025 (2010)] — as evidence that regulations like an assault-weapons ban are unconstitutional. They claim that “law abiding citizens” can exercise their Second Amendment rights by purchasing and carrying an assault weapon. 

Neither amendment is absolute

Yet the Second Amendment is not absolute — just as the First Amendment is not absolute. Claiming that limits on the Second Amendment are unconstitutional is a misunderstanding of the Constitution, and the Supreme Court’s century-old jurisprudence on rights. The fact is every right has limits. There are limits on the ability of a person to speak, to worship, to assemble — all grounded in the fact that some actions endanger other people, and therefore those actions can be prevented. No person has a right falsely to yell fire, because it would likely endanger others. We should apply the same principle to regulate guns. 

The clear and present danger test, or the more recent “imminent lawless action test” — which the Supreme Court established in Brandenburg v. Ohio, 395 US 444 (1969) — are possible and appropriate tests for limiting the right to bear arms. The Supreme Court has established this right as an individual right — regardless of the ambiguities found in the amendment itself. Yet like all rights, the right to bear arms must be limited by the safety of others.

Assault-weapons ban makes sense

So, should we institute an assault-weapons ban? Surely yes, because a person carrying such a killing machine is a clear and present danger for other people.

Should we limit the number of bullets any magazine can contain? Surely yes, because no hunter needs more than five rounds before replacing a magazine. By contrast, such magazines allow mass murders like Adam Lanza’s massacre in Newtown, Conn. 

Should we establish a universal and thorough background check and waiting period? Yes, because allowing someone with a clear record of dangerous use of weapons to buy and possess another one is a clear and present danger.  

Should we ban all rifles and handguns? No, because the presence of a rifle on a deer hunt does not usually represent a clear and present danger to other human beings.

Despite the misguided and ill-informed views of the leaders of the NRA, can’t the rest of us agree that a person who carries a loaded assault weapon with a multi-round ammunition magazine – the purpose of which can only be construed as attempting to kill other human beings – is a clear and present danger?  It is time now for our politicians to do something about it.

Matthew F. Filner teaches political philosophy and constitutional law at Metropolitan State University in St. Paul.


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Comments (22)

  1. Submitted by Neal Rovick on 02/22/2013 - 08:48 am.

    It’s not that hard–the second amendment reads:

    ….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….

    One sentence with two parts, the first part almost entirely ignored and the second part used to justify many things.

    Well, it is clear that a well-regulated militia is a key part of the sentence. A well-regulated militia served to guarantee the security of the fledgling nation and the independence of the individual states. The bearing of arms for individual feuds, disparate wing-nut causes and disputes and general insurrections against the state and nation was not a part of the the making of this amendment. It was an amendment that guaranteed the individual states the right to form permanently armed militias for their own purposes.

    If you want to bear arms in the sense intended by the amendment, get the state of Minnesota to start up a real, well-regulated militia. In fact, former Governor Perpich sponsored a case that was brought to the Supreme Court that DID affirm that each state still has the constitutional right to form a well-regulated militia to guarantee the independence of the state.

    You might find that a well-regulated militia is expected to follow rules and instructions, a command structure, review of fitness for service of members, regular musters and trainings. on and on. Just as it did in the old days. In fact, read the old rules for the militias in Massachusetts–they are quite extensive on the subjects of rules and authority, who has command, under what circumstances guns are to be discharged, who is to be in the militia and who is to be excluded. It’s not a free-for-all.

    • Submitted by andrew pernitzke on 02/22/2013 - 01:11 pm.

      ….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….

      -security from ‘who’ or ‘what’?

  2. Submitted by Dave Thul on 02/22/2013 - 09:15 am.

    Fact check

    “over the past year we have seen those weapons carried into a school, a shopping mall, and, yes, a movie theater.”

    Each of those venues prohibited firearms inside their property, whether by state law or local ordinance.

    “Yet until he used it, he had not committed a crime.”

    Each of the individuals you cite had already committed several felonies before opening fire in the locations you listed.

    “it is perfectly legal to buy and carry an assault weapon fitted with a multi-round ammunition magazine”

    Openly carrying a rifle in a crowd is so rare as to be non-existent, making this a ridiculous straw man argument.

  3. Submitted by William Phillips on 02/22/2013 - 10:12 am.

    Your arguement is invalid

    I understand where you are comming from with the whole “yelling fire in a croweded place” thing but it is not the same as the issue with so called “assault weapons”

    First off I would like to know where are people “openly” carrying these kinds of guns. Beside of course during the comission of a crime with one since obviously if one is perpetrating a crime with a weapon they have it out in the open.

    Secondly just owning a gun like this does not in it self pose a “clear and present danger” as you said. If it did then being capable of speaking the word “fire” in a crowded place would pose a clear and present danger. Just because someone could, or might do something doesnt mean they will. The vast majority of people go their who lives with out doing something stupid that endangers others in a clear and present manner.

  4. Submitted by Ken Davis on 02/22/2013 - 10:52 am.

    Misguided and ill-informed is right.

    Any semi-automatic rifle, whether it’s an assault style rifle, shotgun, or hunting rifle puts out rounds as quick as you can pull the trigger… How is any one of them less able to kill than the other?

    Sig Mosquito, Colt 1911, Bushmaster AR-15, Remington 750… each is just as capable of inflicting harm., how is any one of them less of a “clear and present danger”?

    This article is another poor attempt at trying to single out one style of firearm as being more dangerous than any other out there. That seems to be the best they can come up with.

  5. Submitted by Neal Krasnoff on 02/22/2013 - 11:08 am.

    Constitutional law

    Mr. Filner:

    – Do you belief the state should have a monopoly on armed violence?

    – Do you believe a gun can be used as a legitimate form of individual self-defense?

  6. Submitted by Greg Kapphahn on 02/22/2013 - 12:32 pm.

    “Shouting Fire in a Crowded Theater?”

    May or may NOT result in the injury of the people in attendance, depending on how calm and rational they are in exiting that theater.

    An emotionally or politically deranged person entering that theater, desiring to do harm to the people he or she finds there can do CONSIDERABLY more damage if he/she possesses an assault weapon with a high capacity clip,…

    than they could do with a single-shot rifle, a six shooter, a knife, a club, a rolling pin, their fists or a wet noodle.

    Since we have had several cases of late in which such a deranged person has, indeed, used such a firearm to murder multiple people,..

    and since there is NO RATIONAL REASON on God’s green earth for members of the general population to possess such firepower,

    (and sorry, their IMMENSE neurotic if not psychotic attachment to such weapons does NOT amount to a rational reason),…

    The general public should NOT be allowed to possess such weapons.

    The entire purpose and design behind the creation of a Democratic Republic by the founders of this great nation was that we would cease to be an uncivilized, violent rabble inclined to form ourselves into gangs and settle our differences in the streets of our communities, a la “gunfight at the OK corral,”

    but rather, that we should settle our differences at the ballot box and in the courts.

    In such a system, if you cannot convince your friends and neighbors that you are correct in your perspectives and opinions and healthy enough in your desires to pose no threat to them in living out those thigns,…

    then you justifiably are out of luck (unless, of course, the constitution protects your right, which it does NOT in this case, since you are not a member of the National Guard, nor even part of a local sheriff’s posse, in which case such weapons should be stored at the Guard’s Armory or the sheriff’s office).

    There are any number of countries in the world where thugs are allowed to carry unlimited firepower through the streets of their communities and use them when and how they want (the Mexican drug lords come to mind).

    America IS NOT one of them (although the NRA and the arms manufacturers in our nation would dearly love the levels of profit living in such a nation would provide them).

    The rest of us have NO desire to live in such a nation. Those who do are free to find one and move to it.

    • Submitted by Ken Davis on 02/22/2013 - 01:52 pm.

      An “assault weapon” is no different than any other semi-automatic weapon as far as the damage that it can do. They are all equally lethal. Apparently this fact is often overlooked by those who can’t get past how visually intimidating AR style rifles appear to be.

      “NO RATIONAL REASON on God’s green earth for members of the general population to possess such firepower…” “The general public should not be allowed to possess such weapons.” Again, they are no more lethal than other firearms. A .223 caliber round from an AR-15 is no more lethal than a 30-06 round from a deer rifle. In fact, a shotgun shooting a slug will do more damage than both. Facts obviously aren’t a hindrance to many statements being made.

      “The rest of us have NO desire to live in such a nation. Those who do are free to find one and move to it.”
      The United States has already determined that it’s citizens have a right to keep an bare arms, if someone does not like that then they are free to leave.

      • Submitted by Jonathan Ecklund on 02/22/2013 - 05:01 pm.


        Saying assault rifles are no more lethal than other styles of weapons (handguns, shotguns) of varying calibers is patently absurd. It’s like saying Ferraris are not capable of carrying a human around a racetrack faster than Buicks, as both are still cars, or that a brand new IBM supercomputer has no greater capacity at crunching numbers than your TI-83 calculator. There are all false equivalencies.

        If you own a rifle, that can fire 30 rounds in a 15 second period, you can theoretically hit 30 individual targets within that 15 seconds, without having to reload. Now, say that same rifle has a 7-round magazine. Not only do you have to stop to reload after hitting the jackbooted tyranny types swarming your house in large numbers, but you have to retrain your weapon on your next target after the reload, thus losing valuable time. In this instance, we haven’t even changed the basic weapon, only it’s per-clip ammo capacity, and we’ve already reduced it’s effectiveness demonstrably. Now, say you don’t even HAVE that trusty AR-15, and all you are left with is a Mossberg 500 and Grandpa’s old Colt 1911. You can’t hope to hit any of those targets at anywhere near the range you could with your AR-15 (at least not to ‘stop or drop’ them), so you have to wait until they are up close and personal to do your dirty work. Again, just by switching to types of guns (even though they are still guns) you’ve once again gone into a different tier of weapon effectiveness. Now, replace ‘jackbooted tyranny types’ with ‘random civilians’ in my examples above, and you can see where I’m going with this.

        You may be able to come up with a compelling argument as to why citizens should be able to own military-style assault weapons- if and when you do, I’ll take it seriously. But you can’t convince me that there is no demonstrable difference between them.

  7. Submitted by Sera Peterson on 02/22/2013 - 01:13 pm.

    biased, opinionated article

    Speech is not taken away, and tongues are not cut out, to prevent people from posing a threat or danger with their speech.

    And taking “the right to own” guns away from people will not take guns away from the crazies who use them illegally to begin with.

    Your logic is skewed.

  8. Submitted by andrew pernitzke on 02/22/2013 - 01:27 pm.

    “Shouting Fire in a Crowded Theater?”

    “There are any number of countries in the world where thugs are allowed to carry unlimited firepower through the streets of their communities and use them when and how they want (the Mexican drug lords come to mind).”

    -are you aware that guns are ILLEGAL in mexico? interestingly, the same authority that wants to take guns from US citizens had no problem alllowing cartels to purchase (many) high-powered rifles. ever heard of the mind-blowing “fast and furious”. now the process of ‘taking’ or ‘giving’ by itself, should be alarming. but put them together, and sirens should be going off. if not, i feel sorry for you.

  9. Submitted by Connie Sullivan on 02/22/2013 - 01:36 pm.

    I like the clarity of this article’s comparisons of the absolute First Amendment freedom of speech and the Second Amendment right for members of a citizen militia to bear arms. Neither amendment gives us a right that is absolute; each right is contingent on our not injuring or threatening to injure others as we use it.

    I’m surprised we haven’t seen more people making this important argument. It hits at the core of the weakness of gun advocates’ claims to absolute untouchability by any restrictions by law.

  10. Submitted by Dan Bosch on 02/22/2013 - 09:28 pm.

    MN Law is strangely tilted towards guns.

    MN law allows for concealed carry and probably most types of open carry, yet bans “slungshots” (a rope with a weight at the end), “metal knuckles”, and “switch-blade knives.” I submit that these would protect me quite well against most personal crimes.

    At this point pro-gun folks would laughingly dismiss my observation with their macho sounding, “why would you bring a knife to a gunfight?” But if they are arguing that they should be allowed to be armed with powerful firearms, why can’t I choose to be “partially” armed? Why do states allow lethal handguns but not lethal hand weapons?

  11. Submitted by Joe Rico on 02/23/2013 - 01:10 pm.

    Don’t follow

    I don’t quite follow the logic of this article. It’s illegal to yell fire in a theater because people can get hurt if you do. The freedom of speech is limited in cases were speaking can cause people harm.

    It’s illegal to use a firearm to hurt someone, that’s always been in the case. To say that we should restrict firearms because they could be used to hurt someone, is like saying we should restrict free speech because it can be used to hurt people.

    To say that a gun should be outlawed because it can kill more people than a typical gun is like saying that blogs or newspapers should be outlawed, because they can reach more people than yelling on a street corner would. People may say that blogs or newspapers don’t hurt people like guns do, but let me say to that: Mein Kampf. Many people have been killed because of free speech, but we still protect it, because we view free speech as something that helps guarantee our freedom. Just as many responsible gun owners view assault and any other type of gun as something that helps guarantee their freedom.

  12. Submitted by Scott M1A on 02/23/2013 - 09:02 pm.


    Okay so you are using a racist and eugenics supporting SCOTUS judge to buttress your argument to restrict a citizens ability to exercise a civil right…okay.
    Professor you are aware of the history of gun laws in the US right? They are almost always used to suppress the rights of minorities, whether the antebellum era laws barring slaves from possession of weapons or the Jim Crow laws after the civil war right up through the Mulford Act of 1967 barring open carry in California.
    Aside from your apparent racism SCOTUS found in 2008 that Cities and states could not ban possession of weapons in common use of which the AR15 and most definitely is. It repeated and strengthened that decision in 2010 when it incorporated the 2nd amendment under the due process clause of the 14th amendment, an amendment passed by the way to try to ensure blacks would be able to keep and bear arms so they could protect their homes from the Klan and a power structure that wanted them helpless and easy to control. SCOTUS has clearly determined in those two cases that the government must now use at least intermediate scrutiny and many suspect strict scrutiny will soon be applied to justify any new laws regulating guns. Beyond that if one reads the 1937 Miller decision, most often used by gun grabbers to justify said grabbing, hunting rifles would be less protected than would be the weapons used by the military or law enforcement. In fact if Miller hadn’t died shortly before SCOTUS heard the case and his lawyer decided to stay home it is likely that the 1934 NFA would have been declared unconstitutional.
    The 7th circuit just respanked IL, this time because they allow their citizens no form of legal carry and several other states have had their may issue concealed carry permit laws challenged since McDonald v Chicago.
    The AWB was allowed to expire because the DOJ found it had no effect on crime rates. Last year long guns of any type were used in fewer murders than hands and feet, those involving “assault weapons” numbered 78 nation wide. As cold as it sounds those seventy eight are statistical noise in our national murder rate and the people who committed those murders would have found another way to kill if “assault weapons” magically disappeared overnight. They might use something like boxcutters to achieve their goal or a gallon of gas and a bike lock or even diesel fuel and fertilizer.
    We’ve been having the conversation that gun control advocates say they want since 1988 and FL passed the first shall issue CCW law and gun control advocates have been getting their butts kicked since.

  13. Submitted by Kenneth Kjer on 02/24/2013 - 11:52 am.

    Killing Machines

    An average of 195,000 people in the USA die due to potentially preventable, in-hospital medical errors each year. Medical errors kill enough people to fill four jumbo jets a week. About 93 people die in car accidents everyday, about 1 very 17 minutes. Last year 32,987 people where killed in car accidents. Guns aren’t even close to being the biggest killing machines. Smoking related deaths: 443,000/year due to cigarette smoking and 49,400/year due to second hand smoke. Obesity related deaths: 300,000/year. Deaths due to lack of health care: 101,000/year. We kill people at an amazing rate in all types of ways and guns aren’t even the top ten. If we going to look at killing machines we need to look at the big picture.

  14. Submitted by Neal Krasnoff on 02/24/2013 - 03:23 pm.

    Intellectuals: a clear and present danger

    With the 20th Century and the social disintegration in western civilization indicates, intellectuals and academics pose a clear and present danger.

    Can’t we agree on that as well?

  15. Submitted by seth hahner on 02/28/2013 - 06:38 pm.

    Assault Rifle Ban Not Like Shouting Fire

    Funny, I blogged the counter argument to this failed point of vew some time ago. You can read that link here.

    The synopsis of the article is this:

    Let’s talk about the theater and freedom of speech for a minute. The fact of the matter is, I do have the freedom, right and ability to walk into any theater in America and shout “FIRE!”. If I were to do such a thing and it caused a frenzy where people were injured or killed, I would be arrested and most likely be prosecuted and held accountable for my actions. Even if people were not hurt, I may even be arrested just for causing a disturbance. Anyhow, the point being that I was still able to use my freedom of speech but not without consequences

    Imagine if the government and a voting majority of Americans said that free speech is getting too many people killed and must be contained. Suppose their solution was to force everyone to wear a type of electronic muzzle which would prevent people from saying prohibited words and shouting “FIRE!” in theaters. You would still be able to use “safe” words so technically you still have freedom of speech. But, if you were caught without your muzzle, you could be arrested and prosecuted as a criminal with intent on causing harm with prohibited speech. Does this sound a bit crazy? Well it’s exactly what is happening when we let the government regulate our natural rights guaranteed by the 2nd amendment. Are you getting the picture? Although we currently regulate words used on TVand radio, we do not attempt to prevent the speaker from using them. We only punish for their misuse. The same should be true for firearms.

  16. Submitted by Steve Creason on 03/06/2013 - 10:54 am.


    It is unfortunate that Professor Filner chooses a law that does not apply to the 2nd amendment and cherry picks language from a case that has been overruled for a premise that is unsupportable. First, the 2nd amendment was established to retain the right of the governed to repel the tyranny of the government. History bears out the evidence. Any time a government has started with restrictions or registration it has ended with (in extreme cases) slaughtering of millions of citizens, while user Hitler, Stalin and other dictators. In less extreme cases it has contributed to more violent crime and murder. Those who are proponents of gun control know it is more about control than guns.
    Regarding the legal citation. The case referred was brought in support of the 1798 alien and sedition act. The act prohibited anyone from advocating the overthrow of the US government. The string of cases (3) related to Schenk came to stand for the proposition that prior restraint under the first Amendment was unjustified without some affirmative action warranting punishment.
    It is unfortunate that someone who claims to teach Con Law does not know these things.

  17. Submitted by Pierce Martin on 05/22/2013 - 10:57 pm.

    People driving cars represent a clear and present danger to others. Nobody should be allowed to drive vehicles that weigh a ton and are capable of exceeding 100 miles per hour – a killing machine if there ever was one. Obviously the Founding Fathers could not have envisioned such devices.
    Seriously though, there are millions upon millions of legally owned assault rifles in the US. If the people owning these guns present a clear danger, there should be millions of deaths. Or hundreds of thousands of deaths. At least thousands. Right? Wrong. Each year the number of deaths by assault weapons, rifles, and shotguns combined is typically between 200-500. On the other hand, 40,000 people are killed in car crashes. Does that somehow not constitute a danger? Probably not, because it’s such an everyday occurance. The same logic can be applied to smoking, which kills an estimated 53,000 NONsmokers every year. That’s about 265 times the number of people dying from assault weapons, rifles and shotguns every year. I’d say we have a lot more pressing dangers to deal with than worrying about the tens of millions of assault weapons that result in a few hundred deaths a year. Hammers and fists kill more people than that, according to the FBI.

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