Geoffrey Stone: Understanding the 2nd...

Geoffrey Stone: Understanding the 2nd Amendment

Posted in the Minneapolis Forum

Consistent

Minneapolis, MN

#1 Jan 9, 2013
Understanding the Second Amendment

Geoffrey R. Stone.

Edward H. Levi Distinguished Service Professor of Law, University of Chicago

Opponents of laws regulating the sale, manufacture and use of guns fervently invoke the Second Amendment. In their view, the Second Amendment ("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") forbids the government to regulate guns. Period. End of discussion.

But it is more complicated than that. At the outset, let's put aside the argument that the "well-regulated militia" clause signficantly narrows the scope of the Second Amendment. Although most judges and lawyers endorse that interpretation, the Supreme Court, in its controversial five-to-four decision in District of Columbia v. Heller, rejected that understanding of the text.

So, let's consider that matter "settled." Let's assume, then, that the Second Amendment reads: "The right of the people to keep and bear arms shall not be infringed." Now, that sure sounds absolute. But it's not that simple.

Consider, for example, the First Amendment, which provides: "Congress shall make no law ... abridging the freedom of speech." This also sounds absolute. But does the First Amendment mean that the government cannot constitutionally regulate speech?

Justice Oliver Wendell Holmes put that possibility to rest in 1919 with a famous hypothetical. "The most stringent protection of free speech," he observed, "would not protect a man falsely shouting fire in a theater and causing a panic." In other words, even though the text of the First Amendment sounds absolute, it is not.

But how can this be so? Doesn't the text mean what it says? Here's the catch: Even though it is true that "Congress shall make no law ... abridging the freedom of speech," we still have to define what we mean by "the freedom of speech" that Congress may not abridge. The phrase "the freedom of speech," in other words, is not self-defining. And as Justice Holmes demonstrated with his hypothetical, it does not cover an individual who falsely shouts "fire!"in a crowded theater.

Read more at http://www.huffingtonpost.com/geoffrey-r-ston...
Consistent

Minneapolis, MN

#2 Jan 12, 2013
But it is more complicated than that. At the outset, let's put aside the argument that the "well-regulated militia" clause signficantly narrows the scope of the Second Amendment. Although most judges and lawyers endorse that interpretation, the Supreme Court, in its controversial five-to-four decision in District of Columbia v. Heller, rejected that understanding of the text.

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