Absolute Nonsense

By Kevin D. Williamson

Wednesday, December 09, 2015

‘No, you don’t have an absolute right to own guns.” So reads the headline over the hackneyed, banal (poorly understood “fire in a crowded theater” reference? Check!) column on the Second Amendment by Emily Badger.

That’s a very popular rhetorical gambit. The graybeards all nod along, and the smart kids all smile smugly: “Yes, yes. That’s it. No right is absolute.” As if that settles . . . anything. As if that tells us one single identifiable meaningful thing about the state of firearms regulation. “No right is absolute” is implicitly followed by “and, therefore, I can do whatever I please, you filthy serfs!” But while that may follow rhetorically, it does not follow logically.

The stupidity of American political discourse, even at high levels — the Washington Post, for pete’s sake! — is sometimes breathtaking.

Never mind that the absolutism is in fact on the other side of the argument. I am not familiar with one person of any consequence in the gun-rights movement who has argued that the Second Amendment creates an absolute right that cannot be curtailed under any circumstances. We Second Amendment types are in fact very enthusiastic about curtailing gun rights in certain circumstances, for instance when a person has been convicted of a felony or declared mentally incompetent. I don’t think any of us believe that people in prison have Second Amendment rights while serving their sentences. But in each of those examples, rights have been forfeited by due process of law: a trial for a crime, or at the very least a hearing (an appealable hearing) in a mental-competency proceeding.

As Miss Badger notes, with her practically invertebrate level of analysis, there are restrictions on First Amendment rights, too. We have, for example, laws against libel. This, too, involves a legal process: generally a civil lawsuit, though there do exist some criminal-libel laws. This does not give the government the power to impose what is known in First Amendment law as “prior restraint” — the fact that one can be sanctioned for certain speech does not give Washington a blanket writ to preemptively censor speech until the speaker can prove to some politician’s satisfaction that it is legal. Likewise, the fact that some people can forfeit their Second Amendment rights does not mean that Washington can simply strip the general public of its Second Amendment rights. This is elementary stuff that apparently is beyond the ken of the Washington Post.

But in the case of the First Amendment, we again are not talking about absolutism vs. reasonable (whatever that means) regulation. We’re talking about the basics of a fundamental constitutional right vs. absolutist tyranny. Let’s remember that what was at issue in the Citizens United case was whether politicians in Washington could throw American citizens into jail for showing a film critical of a candidate for public office — Hillary Rodham Clinton — without their permission. That isn’t some crazy, absolutist First Amendment question: If the First Amendment doesn’t protect the right to criticize political figures, it doesn’t do anything at all.

Likewise, the Second Amendment protects an individual right to own guns, as the Supreme Court has affirmed, and it protects the right to bear such arms (as opposed to munitions) as are in general use for the purposes covered by the Second Amendment. The Second Amendment is not there to protect Americans’ right to hunt (as though a recreational pursuit would be No. 2 on the Bill of Rights, with the Third Amendment protecting lacrosse!) or to protect their homes from burglars or to shoot skeet: The Second Amendment contemplates militia action, which is to say, paramilitary action. That isn’t some absurd, absolutist interpretation, either: That is the basic substance of the Second Amendment.

President Obama and a great many Democrats, on the other hand, have said warm and fuzzy things about the Australian model of gun control, which is confiscation and absolutist prohibition.

“No right is absolute” is an empty, meaningless string of words that does absolutely nothing to tell us what kinds of regulations on speech, religious expression, or firearms are within constitutional bounds. More important, they are used as a pretty flimsy camouflage for the argument that we should suspend Americans’ rights without due process, as in President Obama’s argument that those on his administration’s secret list should have their constitutional rights suspended indefinitely with no due process and no appeal.

No, no right is absolute. Neither is the power of politicians.