The Absurdity of Second Amendment Absolutism
The recent mass shooting in Las Vegas once again brought the issue of gun control to the national forefront. And, once again, it was quickly determined that nothing could be done to stem the bloodshed. Why? Because in the United States, rampant gun violence is, to people like Bill O’Reilly, “the price of freedom.” This appears to be a popular view: that freedom and the Second Amendment are inextricably linked, mutually reinforcing each other to make the United States the freest of the free, the bravest of the brave. With an estimated 89 firearms per 100 people — the highest level in the world and 61 percent higher than the second most armed country — the United States should, according to the likes of Bill O’Reilly, be considerably freer as a consequence.
The statistics would suggest otherwise. According to Freedom House’s annual “Freedom in the World” report, the United States ranks 44th with an aggregate freedom ranking of 89 out of 100. The three nations with perfect scores — Norway, Sweden, and Finland — have 31.3, 31.6, and 45.3 guns per 100 people respectively. A 2010 study published in the American Journal of Medicine reported that the firearm homicide rate per 100,000 people in these 3 Nordic countries were, respectively, 0, 0.2, and 0.3.
By comparison, the United States’ gun homicide rate is 3.6 per 100,000 people, 12 times that of Finland’s. Despite their perfect freedom rankings, the most notable trend between these three countries is that the more guns they have, the higher their homicide rates become. Thus, other than being unconscionably disrespectful to the victims of the Las Vegas shooting, it would appear that the correlation O’Reilly draws between gun ownership and freedom is not only off base, but is the inverse of reality.
Although it seems obvious that increased gun ownership results in an increased number of gun related homicides, this concept remains an enigma to people like Sean Hannity, who insist, despite a profound amount of data suggesting otherwise, that these shootings would stop if only everyone had a gun. In reference to the Las Vegas shooting, Hannity asserted that, “If it’s happening within a crowd…you want Sean Hannity who’s trained in the safety and use of a firearm in that room.” This, coming from an individual who is alleged to have pointed a gun at a colleague after an on-air dispute (Hannity rejects this account, though it was confirmed by three separate sources and warranted an HR investigation).
In utter disregard for statistics and common sense, the argument of Second Amendment absolutists like Hannity and O’Reilly is clear: under no circumstances is the right to bear arms to be abridged. To their credit, the language of the Second Amendment seems to support them. It states, “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.” Upon first examination, the Bill of Rights permits little interpretational latitude. However, a look at the only amendment ranked higher in importance provides some deeper insight.
Utilizing similarly absolutist language, the First Amendment states, “Congress shall make no law…abridging the freedom of speech, or of the press.” And yet, Congress has in fact made laws abridging both of those freedoms, laws that have repeatedly been upheld in the Supreme Court. Given the explicitness of the Founders’ intent, it seems impossible that any law could restrict speech and reasonably be viewed as Constitutional. So how has the Court determined otherwise? This is the power of judicial interpretation.
Time and again, the Court has recognized that some speech is dangerous to the extent that, were it to be allowed, it would pose a near existential threat to the security of the State and the wellbeing of its populace. In other words, the Court has determined that some forms of expression do not, and should not count as “speech” at all, and thus, the prohibition of this category of language is not in violation of the First Amendment.
For this reason, since 1919, “falsely shouting fire in a theatre and causing a panic,” in the words of Associate Justice Oliver Wendell Holmes, is unprotected by the First Amendment. For this same reason, inciting a crowd to commit an immediate act of violence is also unprotected. Jurisprudentially, the First Amendment has been interpreted as protecting only that speech which, according to Supreme Court Justice Frank Murphy, is essential to the meaningful “exposition of ideas” and is necessary “as a step to truth.”
The freedom of speech, then, is a political right, not a civil one. Open discourse is necessary for the well-functioning of society as a whole, but is not designed to serve the expressive desires of the individual. A recognition of this fact has allowed for the restriction of some speech while still maintaining the integrity of the First Amendment. If some words are considered dangerous enough to outright prohibit, reason would dictate that the same would apply for guns. Should not the Second Amendment be interpreted the same as the First?
The Second Amendment is unique in that it is the only amendment in the Bill of Rights with a justificatory preamble: “A well regulated Militia, being necessary to the security of a free State…” Unlike the First Amendment, the Second Amendment’s qualifying introduction explicitly recognizes the political nature of the right to bear arms. Yet while the First Amendment has been interpreted with its political intent in mind, the Second Amendment has not. Instead, it is viewed as an individual right, a means of protecting against the state and its citizens as opposed to assisting the state in times of crisis.
Renowned constitutional scholar Akhil Reed Amar postulates that this understanding of the Second Amendment developed only after the Civil War. He suggests that by recasting the Second Amendment as an essential civil right, Reconstruction Republicans altered the intended meaning of the Amendment entirely. As a result, the right to bear arms became “utterly divorced from the militia and other political rights and responsibilities.” We are now experiencing the consequences of this ideational shift. The shooting in Las Vegas, and the countless shootings that came before, necessitate a return to the Founders’ intent.
Second Amendment absolutists often cite the Founders to justify their strict adherence to what they believe to be the inviolable right to bear arms. Whereas the Founders viewed the Second Amendment as a public right, “with the militia muster on the town square,” the modern understanding of gun ownership is private — lurking in hotel rooms, churches, and elementary schools. This is not only a misappropriation of the Founders’ intent, but it has the consequence of violating that first unalienable right to “Life, Liberty, and the pursuit of Happiness.”
Freedom in this country is not contingent on unabridged gun ownership, just as it is not reliant on unrestricted expression. To limit speech for the purpose of safety and contemporaneously view restrictions on guns as off limits is not only moronic, it is antithetical to our entire American experiment. While pundits like O’Reilly and Hannity use the Founders to defend their otherwise unsubstantiated beliefs, their invocations are sacrilege to the Founders’ true design, and are demonstrative of a profoundly ill conception of our rights not only as Americans, but as humans.
