Posted on January 18, 2016



Obama Seconds Holmes

Our rights don’t just end somewhere


Daniel Clark



A guest on The Steve Allen Show once said, “I don’t believe in vitamins,” to which Allen replied, “But I’ve seen them.”  This is basically what President Obama means when he declares, “I believe in the Second Amendment.”  What he’s really saying is that he is aware of its existence, not that he agrees with it, or believes in the reasons it was written and ratified.

Many conservatives are relieved that Obama’s recent executive orders on gun control were relatively unambitious.  While announcing them, however, he revealed just the sort of willingness to revoke our Second Amendment rights that many Americans fear.  “I mean, think about it,” he said.  “We all believe in the First Amendment, the guarantee of free speech, but we all accept that you can’t yell ‘fire’ in a theater."

That statement is a reference to Oliver Wendell Holmes’ majority opinion in the unanimously but wrongly decided Schenck v. United States case.  The petitioner, Charles Schenck, was a Socialist Party leader who had been found in violation of the Espionage Act, for his encouragement of draft-dodging during the First World War.  It would have been only natural to wish there were some constitutional basis for ruling against him, but none existed.  Undeterred, Justice Holmes simply made things up when he wrote, “the most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.”

It’s hard to know where to begin dissecting that oozing heap of gobbledy.  This hypothetical “most stringent protection of free speech” most certainly would protect such a man, because if it didn’t, it wouldn’t be the most stringent.  The First Amendment doesn’t go that far, though.  It only prohibits Congress from making a law abridging the freedom of speech.  If shouting “fire” in a theater is illegal, that’s because it’s a violation of a state law or local ordinance.  No federal law, made by Congress, is involved.  Yet Holmes used this irrelevant and deliberately imprecise parallel to justify the abridgment of the freedom of speech, through a law that had been made by Congress.

What Holmes would have us believe is that the First Amendment’s limitations are not written into that law itself, but instead are left to be drawn arbitrarily by our superiors, whose role it is to stop us before we take our freedoms too far.  The reason it can be illegal to shout “fire” in a theater is because it isn’t a federal issue, not because some omnipotent figure is empowered to dictate the boundaries of our rights.  Holmes ruled, with no constitutional support whatsoever, that if something you say presents a “clear and present danger,” then Congress may indeed abridge your freedom of speech.

By citing Holmes, Obama indicates that he views the Second Amendment the same way.  This is doubly sophistic, because our Second Amendment rights can’t be curtailed by state and local authorities, let alone Congress.  Unlike the First Amendment, which specifically restricts federal power, the Second states in absolute terms that, “the right of the people to keep and bear arms shall not be infringed.”  What Obama, while channeling Holmes, is saying is that our Second Amendment rights (in which he believes, mind you) shall be infringed whenever he feels like there’s a really good reason.

Holmes was willing to trample our rights in overzealous pursuit of a genuinely vile character.  Whom do you suppose Obama is seeking to thwart when he says another constitutional right “we all believe in” may be just as whimsically restricted?  During a 2008 speech in San Francisco, he prejudicially smeared small-town Americans in Pennsylvania and the Midwest by saying, “They get bitter.  They cling to guns or religion, or antipathy to people who aren’t like them.”  What’s one theater shouter compared to countless bitter, gun-wielding, religiously motivated racists?

If Holmes successfully argued that words can cause a “clear and present danger” that justifies the nullification of rights, then how much easier is it to make the same argument about firearms?  Do you keep a gun in a house where there are children?  Do you have a carry permit that allows you to walk armed through crowded streets?  Is there any possibility that someone might break into your house, take your gun, and go on a rampage?  Then you, too, may pose a clear and present danger.  Good thing we have constitutional scholars with middle names like Wendell and Hussein, to decide where your rights just happen to end all of a sudden.



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