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.
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.
WANT TO ADD YOUR VOICE?
Write your reaction to this piece in Comments below. Or consider submitting your own Community Voices commentary; for information, email Susan Albright.