1st, 2nd Amendments Closer Than I Thought

What strikes me about the arguments of gun advocates is how similar they are to the ones that I and other free speech advocates regularly make. For instance, they say the answer to too much gun violence is more guns. We say the answer to false, hateful and pernicious speech is more speech. Maybe you just can't cherry pick the Bill of Rights.

I think I know how the beleaguered guns nuts feel right about now, even though I have never owned a gun or felt the need to own one. (I did once fire my ex-brother-in-law’s .44 Magnum revolver in his Virginia woods years ago. My ears are still ringing.)

For years, on this page and earlier in Broadcasting & Cable, I have defended the free speech rights of broadcasters and of media in general and I have attacked those who would chip away at those rights through law or regulation. And like the gun nuts do about guns, I probably have a much more expansive view of what speech should be protected by the Constitution than your average citizen.

In the wake of the Newtown killings last Dec. 14, the NRA and others have rallied to oppose the Obama administration’s campaign to impose tougher restrictions on gun ownership. In so doing, they have made the same fundamental arguments that they have many times before — that the answer to too much gun violence is more guns and that guns are necessary to guard against tyranny.

A week after the killings, NRA Executive Director Wayne LaPierre took the more-guns argument a step further, proposing that the government post armed guards in every school.

And Rep. Louie Gohmert (R-Texas), the only pro-gun lawmaker brave enough or nutty enough to go on TV the Sunday after, made the “tyranny” argument, saying government will stay in line only if it knows “the biggest army is the American people.”

LaPierre and Gohmert were roundly ridiculed and criticized for their comments.


But what strikes me about their arguments is how similar they are to the ones that I and other free speech advocates regularly make. The answer to false, hateful and pernicious speech is not censorship, we say. It’s more speech. If everybody is given an opportunity to have their say and access to it is not restricted, the people in their collective wisdom will eventually winnow out the truth and all will be well.

And when we really get warmed up, we will talk about how free speech is crucial to democracy and a bulwark against tyranny.

And just like the gun nuts, we can cite respected Americans in making our case. “[If] the freedom of speech is taken away, then dumb and silent we may be led like sheep to the slaughter,” said George Washington.

And there is no publisher in the country who hasn’t used this line from Thomas Jefferson on the occasion of some journalism award: “If I had to choose between government without newspapers, and newspapers without government, I wouldn’t hesitate to choose the latter.”

Like the gun nuts, we are ever vigilant. No affront to free speech is too small to raise our ire for each one puts us on that slippery slope. You’re telling me we can’t say “fuck” or show somebody’s backside in primetime, well, we’ll see you in court.

The TV industry is fortunate that it is not currently the target of the government’s determination to do something — anything! — to stop the gun violence. But like the gun nuts, First Amendment advocates have had to rebut circumstantial evidence that media are a root cause of rampage killings. You never know when the government may shift its sights. (See there: guns are so pervasive in our culture that I’ve used two gun metaphors in this paragraph without even trying.)

I think it is reasonable to ban assault rifles. In the hands of the wrong person, they can quickly do a lot of damage. An urban/suburban dweller all my life, my idea of home protection is a dog, a baseball bat and a telephone. I have no interest in killing anything for sport.

But then I know that there are many Americans who believe it is reasonable to censor reports that may jeopardize national security, to make news media more accountable for false reports, to force reporters to turn over notes and divulge sources to prosecutors, to deny reporters access to government documents, to prohibit flag burning and to regulate indecent and violent TV programming.

Yet, I would protest against all of those things.

So, as I said, I can empathize with the gun nuts. Like them, free speech advocates tend to draw the line of what’s permitted and what’s not way farther out than where most would draw it.

Maybe you can’t cherry pick the Bill of Rights. If it turns out that you can gut one of those amendments, you may be able to gut them all.

Maybe the gun nuts aren’t such nuts after all. Either that or I’m a nut too.

Harry A. Jessell is editor of TVNewsCheck. He can be contacted at 973-701-1067 or [email protected]. You can read earlier columns here.

Comments (15)

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Matthew Craft & David K. Randall says:

February 22, 2013 at 3:40 pm

This is a genuinely thought-provoking essay and deserves broad circulation beyond the pages of TVNEWSCHECK. I don’t agree that regulating speech and firearms are quite as similar as Harry suggests, but until both sides demonstrate greater understanding and respect for their opposing views, we can do little to protect the public. This article brings that day a step closer.

Matthew Castonguay says:

February 22, 2013 at 3:45 pm

The fact that you can draw parallels between things doesn’t necessarily make them equivalent. It is true though that many progressives see the Constitution as a “living document”, meaning interpret it as convenient/expedient or desired…and some are recently starting to come right out and say “who needs a silly old document drafted by a bunch of old white guys two hundred years ago anyway” (NYTimes Op Ed a few weeks ago by a noted American U “constitutional scholar”). There was also an OpEd in the same NYTimes a couple of years ago by an Ivy law professor who (a progressive) who basically said the Commerce Clause precedents are now so broad as to render the Constitution practically moot. She said the only real ultimate check now on the power of government is the ballot box. This is not the way it was supposed to be – but it kind of crept up on us while we snoozed (or were watching Honey Boo Boo).

Jason Crundwell says:

February 22, 2013 at 3:48 pm

Perhaps the essay would be more widely accepted if you would refrain from referring to those who support the Second Amendment as “gun nuts.” They are merely doing what you are: trying to protect a guaranteed freedom from being revoked. Gohmert was simply stating the purpose of the Second Amendment: not to protect “hunters and sportsmen,” but to allow citizens to retain some power against a tyrannical government. Jeez, read the Constitution and the Declaration, will ya?

Jeffrey Burgan says:

February 22, 2013 at 3:59 pm

Interesting thoughts but your consistent reference to “gun nuts” while not using similar hyperbole when discussing the defenders of the 1st amendment is glaring.

Allyson Mongrain says:

February 22, 2013 at 4:14 pm

Mr Jessel:

I believe calling people that support the second amendment “gun nuts” might being going too far, just because you support the first amendment doesn’t have to make you into a “free speech nut,” it just means that you advocate the right to have such freedoms. When you call people nuts, it not only alienates them, it shuts down the dialogue entirely because we are now locked into a debate that is no longer about the points at hand but rather the caricatures people have created about them. That being said, if you believe a baseball bat is all that you need to protect yourself and those you care for all the more power to you, but if someone that feels more secure with a gun is not irrational or imbalanced, it is simply the choice they have the constitutional right to make, at least at this time.
I actually agree with you about banning assault weapons if it can be done so in such a way that it definitively prevents any future loss of life. Just because I support the right to own a gun does not mean I believe people are entitled to a full arsenal in their basement. If you are not experienced with guns, please do not presume to know everything about them and those that use them for sport. It is a risky line of thinking that can easily stereotype those that you do not know personally.
I do believe that gun violence needs to be addressed, but I feel that Obama has had over four years now to do something about these issues in a responsible manner but has instead chosen to respond to these events retroactively over being proactive about these issues that not only is likely to fail to protect those he wishes to help, but will impede the rights of others through tearing apart our constitution based on an emotional reaction that has clouded all of our judgment. Only two weeks a 74-year-old man was beaten to death inside a Wal-Mart with a baseball bat, it seems clear to me that there is an underlying violence that transcends simply the tools being used to act them out.

Dale Palecek says:

February 22, 2013 at 4:37 pm

Well done Harry. You obviously see the perils we face today with an Administration taking away our Freedoms wherever they see an opportunity. As you so well point out the “opportunistic” focus right now is ‘guns” …but there have been fingers pointed at FOX NEWS and other more centered News organizations that don’t drink the ‘Kool Aid!!” So speech is on their radar!!

    Matthew Castonguay says:

    February 22, 2013 at 4:49 pm

    Ben, you’re referring to POTUS’ public musing about the problem of people getting “wrong information” from certain outlets? You do have to wonder where that chain of thought leads. The progressive left is increasingly trying to wrap itself in robes of empiricism….truth, so they say, is on their side…and that gives them a lot of latitude. They seem oblivious to the fact that historically this concept tends to lead to totalitarianism. I don’t think it’s an evil plot. I just think they don’t get it.

Boots Walker says:

February 22, 2013 at 4:51 pm

It is interesting how opposing sides try to diminish the auguements of the other side with hyperbole and name calling. “Gun nuts” tries to paint everyone with concerns about gun control as extremists much like people with concerns for the environment are labeled “environmental wackos” by those opposing their views. Your article certainly is thought provoking, so it’s a shame you dimished your arguements by your choice of words.

    Matthew Castonguay says:

    February 22, 2013 at 5:37 pm

    I tend to agree although have you taken a close look at Wayne LaPierre lately? I worry about that guy.

David Francois says:

February 22, 2013 at 5:03 pm

As has been said before in other venues….Without the 2nd Amendment eventually there will not be a 1st Amendment or the rest of them for that matter. The U.S. is unique in that our founding documents and the people that crafted them realized their necessity because they had lived under tyranny. Their wisdom is manifest now more than ever.

Gene Johnson says:

February 22, 2013 at 5:51 pm

While Harry’s analogy might seem to have some facial plausibility, a closer examination suggests it’s not so appropriate. Not until the S. Court’s recent Heller decision a few years ago did the court conclude that the 2nd Amendment provided for a private right “to bear arms,” as opposed to a collective right in the context of a “well regulated militia” (an important part of the 2d Amendment that you rarely, if ever, hear gun advocates mention). And that was decided in a very close and narrow 5-4 decision. Even in the context of the Heller decision, Justice Scalia (the decision’s author) said that appropriate government regulation is allowable. That is, it is not an unfettered private right to bear any arms, but is subject to far more regulation than any 1st Amendment proponent would ever accept or acknowledge for freedom of speech (which in the 1st Amendment has no modifying language such as that in the 2nd Amendment). Further, nobody was ever killed by someone abusing or mishandling their free speech rights, while there are tens of thousands of deaths each year due to someone misusing or mishandling a gun (I would characterize anyone using a gun to kill someone else, or accidentally kill themselves, either misuse or mishandling – even though guns are designed as deadly weapons, unlike speech). Gun advocates tend to read far more into the 2nd Amendment than is actually there. While if I had my druthers the 2nd Amendment would be repealed as a provision of the bill of rights that has long outlived the reasons for which it was adopted (and that was not to allow the individual to rise up in arms against their own country or government, otherwise the laws that exist making such activity (e.g., treason) a criminal offense would be of questionable constitutionality), that is not going to happen given our political realities. That does not mean, however, that we cannot have reasonable and appropriate gun regulation that bans certain types of guns, and heavily regulates others, all within the permitted confines of the 2nd Amendment’s actual provisions, not those dreamed of by some.

    David Francois says:

    February 22, 2013 at 10:00 pm

    If the reason for the 2nd Amendment is not to give a dictatorial government pause to consider it’s conduct then why is it there. There needs to be study done by some here to understand the “back story” for the 2nd and in fact for all the first 10 amendments commonly refered to as “The Bill of Rights..” The history here is quite facinating. The history of the 2nd shows plainly that it really has nothing to do with “hunting and fishing.” What is interesting is that the “Left” has taken upon itself the mantle of proposing and promoting the disarming of the American populace. There could come a time in the future when a government not to the liking of our brothers who today propose a disarmed general population might wish they had those weapons back. The history of “gun control” in this country has a very racist background that is almost unknown today. The propagation of laws to regulate who could carry and own arms in many states were designed to disarm the recently freed slaves and their supporters after the Civil War. This is one little bit of history that most on the left do not want to admit and most have no knowledge of. I learned of it over 40 years ago by a decidedly left wing history professor who thought he was making points against the “white conservatives” of the south. The passing of the Sullivan Act in New York City was to disarm the imigrants then coming in. History really can be inconvineint at times can’t it. Of course the disarming of those with with which you do not agree goes back hundreds of years.

Ellen Samrock says:

February 22, 2013 at 8:52 pm

While I’m personally opposed to gun ownership, knee-jerk, reactive legislation in the wake of a tragedy is never good policy. Unfortunately, we have an administration that has become increasingly paranoid of the media. Using a shooting tragedy as a pretext to crafting legislation regulating television programming is not too beneath them. After all, they’re using the false “needs” of broadband as a pretext to cripple broadcast television.

Hans Schoonover says:

February 23, 2013 at 12:41 pm

I’m glad; you have the nuts to speech out

Maria Black says:

February 25, 2013 at 3:07 pm

“The right to bear arms” doesn’t mean just guns. And while that whole “part of a well regulated militia” thing is in there, I think we should look at what that period of our history was really like. To bear arms, or to have weapons, as part of a militia is much different than a hunting rifle. The use of a firearm for personal use was sort of a given, and as our forefathers weren’t sitting around worring if little Timmy would hurt himself with the musket, the use of firearms for personal use is really not the issue. But since the technology has expanded, we’ve had to adapt our constitution for this. Our 2nd ammendment now does cover guns, as we don’t need militias and people aren’t running about with swords or bows. Its good to see a parallel because this is how every right should be defended in the Bill of Rights. Our society has changed, but the fact that this is what our laws are currently based on means we keep them.

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