Jump to content
millsan1

Yelling fire and the 1A

Recommended Posts

Here is an argument I could never hear again and be happy:

 

The Second Amendment is not absolute, like the other Amendments. Even though you have the right to free speech, you can't yell "fire!" in a crowded theater.

 

That is 100% correct! But here is the difference:

 

If you yell "fire" in a crowded theater, you are committing a crime, and should be punished.

 

If you commit a crime with a firearm, you should be punished.

 

The huge difference? No one is trying to outlaw the word "fire" because some criminal shouted it in a theater.

Share this post


Link to post
Share on other sites

What I am referring to is that the word "fire" is the bad thing in the example.

 

What antis believe is the bad thing is the gun when a crime happens.

 

They are trying to ban guns, but not the word fire

 

Therefore the comparison is moot, on its face

Share this post


Link to post
Share on other sites

Actually the main reason you cant yell fire in a crowded theater is a theater is private property and you have no 1a protection on private property.

 

If the theater is owned by the public then you can yell fire :)

. What? No. Your rights are still valid on private property. They can only ask you to leave.

Share this post


Link to post
Share on other sites

Indeed. The real issue is of how 2A jurisprudence will stand alongside other "fundamental" and enumerated rights. Prior restraint is the biggest problem with all these firearm laws serving public safety claims by the state. These laws are based on the idea that, we won't allow you to have this (guns/ammo/capacity/firepower) or to do that (carry in public), because then you might be facilitated in harmful acts (which are already illegal). But such restraints should offend the constitution and be struck down.

 

RANT: What of the references requirement for PPP/FPID? How does this comport with the right to arms, and how does a neighbor or friend further the investigation of a person's suitability to own firearms? Assuming for the moment that it is constitutional to investigate prospective gun owners, why should references be required at all? Why isn't it enough that a person has no conviction record for serious crimes, or for drug use, or for mental illness commitment? How does a lay person add value to such investigations?

RANT OFF

Share this post


Link to post
Share on other sites

Here's one I used and it really stuck with ppl.

 

P: Guns are the instrument of violent crime. Any laws that only go after the person are incomplete without addressing the instrument of the crime

Me: Well rape is a violent crime; you gonna lock up every guy's package unless some person on an approved list biometrically swipes it open?

Share this post


Link to post
Share on other sites

Here's one I used and it really stuck with ppl.

 

P: Guns are the instrument of violent crime. Any laws that only go after the person are incomplete without addressing the instrument of the crime

Me: Well rape is a violent crime; you gonna lock up every guy's package unless some person on an approved list biometrically swipes it open?

 

The response I always get to a statement like that is "Yeah, but firearms are DESIGNED to kill, [blank] isn't." I've even received that response for cigarettes and alcohol. When I mention that both are poisons designed to be ingested, they stick with "Yeah, but it's not designed to kill." That's when I know all serious discussion is over.

Share this post


Link to post
Share on other sites

The idea of this argument from antis is this:

 

If I yell "fire!" in a crowded theater, people could panic, run for the door and someone might get hurt. If I stood up and yelled "pony!", there would not be the same result. So your right to free speech is limited because the use of the word "fire" in this case could reasonably lead to injury.

 

Their argument re: guns is that they could be used in a crime, and are therefor dangerous and therefor need to be banned, regulated, etc.

 

So my comparison stands. If you want to ban guns because someone might do something bad with a gun at some point, then we should ban the word "fire" because someone might cause a panic if they use that word in the wrong place at the wrong time.

 

Clearly, banning the word "fire" is ridiculous. Because it is a word that is used for many other purposes other than causing a panic in a theater. So the argument for banning weapons is equally ridiculous, based on the actions or potential actions of a few.

Share this post


Link to post
Share on other sites

The idea of this argument from antis is this:

 

If I yell "fire!" in a crowded theater, people could panic, run for the door and someone might get hurt. If I stood up and yelled "pony!", there would not be the same result. So your right to free speech is limited because the use of the word "fire" in this case could reasonably lead to injury.

 

Their argument re: guns is that they could be used in a crime, and are therefor dangerous and therefor need to be banned, regulated, etc.

 

So my comparison stands. If you want to ban guns because someone might do something bad with a gun at some point, then we should ban the word "fire" because someone might cause a panic if they use that word in the wrong place at the wrong time.

 

Clearly, banning the word "fire" is ridiculous. Because it is a word that is used for many other purposes other than causing a panic in a theater. So the argument for banning weapons is equally ridiculous, based on the actions or potential actions of a few.

 

You can nip their argument in the bud with the concept of prior restraint -- a form of censorship. It is established that the government cannot obtain prior restraint to suppress your 1A rights. Compare these 1A protections directly to the 2A:

 

A person's 1A rights cannot be infringed by the government merely because the person may take actions afforded by that right to create a panic and cause harm in a crowded movie theatre. Likewise a person's 2A rights should not be infringed because they could take actions afforded by that right to cause harm.

Share this post


Link to post
Share on other sites

Clearly, banning the word "fire" is ridiculous. Because it is a word that is used for many other purposes other than causing a panic in a theater. So the argument for banning weapons is equally ridiculous, based on the actions or potential actions of a few.

 

 

It isn't an issue of banning the word fire. The anti-2A argument is more analagous to saying everyone should have their mouth sutured shut upon entering the theater.

Share this post


Link to post
Share on other sites

It isn't an issue of banning the word fire. The anti-2A argument is more analagous to saying everyone should have their mouth sutured shut upon entering the theater.

 

well, some people should have their mouth sutured shut, ie black people who talk during the entire freakin movie!

Share this post


Link to post
Share on other sites

You are referring to what is called "prior restraint." You can't gag a person on the way into the theater in order to prevent them from yelling "fire."

 

This.

 

IMHO, it isn't currently nor was it ever illegal to simply shout "fire" in a crowded theater. The 1st Amendment protects the word "fire" and associated phrases because banning it's use in public under all circumstances might in fact cause harm. If such speech was illegal, if I happened to be in a public place and saw the building on fire, the law would forbid me from warning everyone else. However using the Brandenburg v. Ohio SCOTUS decision, falsely shouting "fire" would be illegal if and only if, it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." So your speech must be intended to likely provoke riotous actions in the very near future for it to be unprotected.

 

If you look at carry laws in the same light, carrying a firearm should be protected by doing what a law abiding citizen does on a daily basis i.e. not committing lawless action. We have a process we need to go through in New Jersey if we want to legally obtain a firearm. Once we meet those requirements we can keep purchased firearms in our homes. The state says they don't have a problem with this and apparently we are responsible enough with firearms when under our own rooves. But step outside with that legal firearm and our state says that simple possession indicates that an individual has the intent to incite, or produce as a byproduct, imminent lawless action. Inside you are a protector, outside you are a ticking time bomb. Further, NJ says a concealed firearm is not a legal means of self defense in public unless they deem you worthy of such protection. By showing a "justifiable need" and receiving a paper with your name on it, suddenly your unstoppable need to commit homicidal/unlawful acts disappear and you can be trusted to carry a gun.

 

Preaching to the choir I know, but just goes to show you how ridiculous our legal system can be.

Share this post


Link to post
Share on other sites

Hence you have no rights on private property to free speech. If you did you would be able to use your Right to stay but you cant :)

 

I'm not following. Your rights don't end on private property. However, you have no right to be on the property. You still have personal rights no matter where you are, it's the right to be there that can change.

Today you could be charged with terroristic threats it they wanted for screaming fire anywhere private or public.

Share this post


Link to post
Share on other sites

You can nip their argument in the bud with the concept of prior restraint -- a form of censorship. It is established that the government cannot obtain prior restraint to suppress your 1A rights. Compare these 1A protections directly to the 2A:

 

A person's 1A rights cannot be infringed by the government merely because the person may take actions afforded by that right to create a panic and cause harm in a crowded movie theatre. Likewise a person's 2A rights should not be infringed because they could take actions afforded by that right to cause harm.

 

:clapping: Sounds good.

Share this post


Link to post
Share on other sites

Any idea if these defenses have ever been tried in court? I wonder how they'd actually hold up.

 

Supreme Court held that prior restraint of 1A rights are unconstitutional

 

It has been argued for 2A rights (for having to show proper cause to obtain an unrestricted pistol permit in NYS) unsuccessfully in Kachaksky vs County of Westchester (upheld by 2nd U.S. Court of Appeals)

 

http://www.firstamendmentcenter.org/court-wont-import-first-amendment-concept-into-second-amendment-case

 

"Court rejects First Amendment concept in Second Amendment case

 

David L. Hudson Jr.

First Amendment Scholar

Wednesday, November 28, 2012

The First Amendment’s presumption against prior restraints should not be used in Second Amendment cases, a federal appeals court has ruled in rejecting a constitutional challenge to New York’s restrictive handgun-permit law.

Five people — Alan Kachalsky, Christina Nikolov, Johnnie Nance, Anna Marcucci-Nance and Eric Detmer — challenged the state’s restrictive handgun-permit laws on Second Amendment grounds after they were denied full-carry licenses to carry concealed handguns.

Part of the law provides that a license “shall be issued to . . . have and carry [a firearm] concealed . . . by any person when proper cause exists for the issuance thereof.” This provision has been interpreted to mean that individuals can obtain permits for limited purposes, such as hunting or target practice.

However, the state law also says individuals can show “proper cause” to obtain a full concealed-carry license for self-defense only if they can demonstrate a “need for self protection distinguishable from that of the general public.”

After a federal district court upheld the law in September 2011, the plaintiffs appealed to the 2nd U.S. Circuit Court of Appeals. On Nov. 27, a three-judge panel of the 2nd Circuit in Kachalsky v. County of Westchester affirmed the lower court and upheld the law.

The plaintiffs sought to invoke the First Amendment’s presumption against prior restraints — laws that impose hurdles on speech-related activities, such as licensing laws. They argued that just as the First Amendment generally forbids the government from requiring anyone to obtain a license before speaking, the Second Amendment also should forbid government from making individuals obtain licenses before exercising their fundamental right to “keep and bear arms.”

“We are hesitant to import substantive First Amendment principles wholesale into Second Amendment jurisprudence,” the appeals court panel wrote.

The court recognized the Supreme Court drew analogies between the First and Second Amendments in District of Columbia v. Heller (2008), in which the Court first ruled that the Second Amendment protects an individual right to keep and bear arms, as opposed to a collective right of maintaining a militia.

“But it would be as imprudent to assume that the principles and doctrines developed in connection with the First Amendment apply equally to the Second, as to assume that rules developed in the Second Amendment context could be transferred without modification to the First,” the appeals panel reasoned.

Furthermore, the appeals court noted that the New York law on issuing full-carry permits was not without standards. It was not an example of a law that vests government officials with “unbridled discretion” — a very negative term in First Amendment law — in deciding whether to issue or deny permits.

Even though the appeals court rejected the prior-restraint concept, it did embrace analogies to other parts of First Amendment law. The court said the highest form of judicial review in free-speech law was reserved for the core types of speech the First Amendment was designed to protect – such as pure political speech — whereas a lesser form of judicial scrutiny is used to review restrictions on commercial speech (advertising). The panel reasoned that a higher form of judicial review should be reserved for restrictions on handgun ownership in the home as opposed to carrying a handgun in public."

Share this post


Link to post
Share on other sites

Even though the courts have ruled against the "prior restraint argument" I think their conclusion is wrong for the simple reason that unlike the First Amendment the Second has the qualifier "shall not be infringed". It seems our Founding Fathers knew that some restrictions on free speech may be necessary at times, but they stressed that restrictions should not be placed on the right to Bear Arms. No infringement does not mean, maybe a little is o.k. -it means NONE. The courts and many in the legislature may not like that fact but it's there. If the Second Amendment did NOT say "shall not be infringed" then we'd be hard pressed to argue against restrictions. The courts have to stop legislating by proxy through their opinions and step up and validate the Constitution and it's Amendments as they have been understood since their inception.

Share this post


Link to post
Share on other sites

Here is an argument I could never hear again and be happy:

 

The Second Amendment is not absolute, like the other Amendments. Even though you have the right to free speech, you can't yell "fire!" in a crowded theater.

 

That is 100% correct! But here is the difference:

 

If you yell "fire" in a crowded theater and there is no fire, you are committing a crime, and should be punished.

 

If you commit a crime with a firearm, you should be punished.

 

The huge difference? No one is trying to outlaw the word "fire" because some criminal shouted it in a theater.

 

FTFY. If there is a fire, it's perfectly acceptable to yell "fire" no matter how crowded the theater is.

Share this post


Link to post
Share on other sites

the point that the antis dont see is: you DO have a RIGHT to yell fire in a theater. its the application of the right that is wrong or possibly illegal

 

likewise, you DO have the RIGHT to keep and bear. its the application of the right (ie: murder with a gun) that is wrong or illegal.

Share this post


Link to post
Share on other sites

Despite the obvious Straw Man of the federal court that "fire" in a movie theater is a reasonable restriction on the First Amendment, any 7-year old with a brain should be able to understand that's silly.

 

- Set a fire in a trashcan in a theater - mayhem and reckless endangerment.

- Yell "Fire" in a theater - 1st Amendment issue? No. Still mayhem and reckless endangerment.

 

Let's try it this way:

 

- Stab your neighbor to death - murder.

- Shoot your neighbor to death - 2nd Amendment issue? Nope. Still murder.

 

 

Don't let these learned federal Progressives from the 1900s fool you with into thinking there are reasonable limitations on your rights with Straw Man arguments that even a 7-year old could see through.

 

The basis itself is unfounded and silly.

Share this post


Link to post
Share on other sites

Here's one I used and it really stuck with ppl.

 

P: Guns are the instrument of violent crime. Any laws that only go after the person are incomplete without addressing the instrument of the crime

Me: Well rape is a violent crime; you gonna lock up every guy's package unless some person on an approved list biometrically swipes it open?

 

 

 

The response I always get to a statement like that is "Yeah, but firearms are DESIGNED to kill, [blank] isn't." I've even received that response for cigarettes and alcohol. When I mention that both are poisons designed to be ingested, they stick with "Yeah, but it's not designed to kill." That's when I know all serious discussion is over.

I hate the "yelling fire" analogy, but love it because its so easy to refute.

Let's take the above one step further.

Antis claim that firearms are designed to kill-which is patently false. They're designed to shoot a projectile at high velocity. The fact that they MAY be used to kill is irrelevant-because we've got good medalists who didn't kill anyone in their competitions.

I'll even make it easy for the leftists who like to use the "a gun must be an extension of your penis".

Ok, let's have mature debate without being immature:

Both are designed to shoot projectiles.

One is bullets(firearms) the other semen or urine.(Penis)

Simply by HAVING either a firearm or a penis is guarantees a result leading to either homicide or rape.

Both acts are illegal, and attempting to legislate either act via the above prior restraint argument is ludicrous.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...

  • Recently Browsing   0 members

    No registered users viewing this page.



×
×
  • Create New...