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I've always found the "can't
yell fire in a crowded theater" argument to be a false one, and invalid on most
fronts.
- First, you can yell
"fire" in a crowded theater . . . if it is part of the play, or if there is an
actual fire, or if doing so is part of audience participation, or if
you lease the theater for private purposes and warn everyone about what you
intend to do.
- Given the above, what the
"fire principle" actually details is the prohibition of "endangering
behavior". When one exercises a reserved right in a manor that deprives
others of their rights (such as the right to life being squashed by a
stampeding audience), then the conflict of rights must be
resolved.
- The comparison breaks down
further when it is noted that the "yelling fire" prohibition requires the act
to be committed first, whereas most gun control legislation creates
prohibitions or bureaucratic hoop-jumping exercises in advance of an
endangering act . . . that might never happen.
Let's reverse the process by
taking common gun control legislation (proposed and current) and applying the
same principles to producing a play:
- Before a playhouse can be
rented, the producer would have to document their ability to put on a play
without any member of the audience yelling "fire". This would included
formal training in selected speech controls and mob management
techniques. (training requirements before getting a firearm
permit)
- The producer would have to be
finger printed, photographed, and a criminal background check made to prove
(s)he has never allowed an audience member to yell "fire" before.
(registration and background of permit holder)
- The producer would have to
apply for and purchase a license for each showing of their play (licensing for
each firearm) and be allowed only to perform the play once a month to reduce
the likelihood of someone yelling "fire". (one gun a month
laws)
- Certain plays would be
forbidden because they might be more likely to encourage audience
members to yell "fire". (assault weapons bans)
- Audience members would be
issued gags as they entered the theater, and the producer would be required to
assure the gags were worn by each member of the audience. (gun lock
laws)
- Each audience member would be
locked into a soundproof box during the performance so if they did yell
"fire", nobody would be frightened by it. (safe storage
laws)
- If someone in the audience did
yell fire, the government could sue the playwright for negligence. (fast
fading spate of city suits against gun manufactures)
The notion of "reasonable
regulation" fails several tests, but one in particular -- a reserved right can
not be regulated in advance. Substantial preemption or delay of a right is
as good as denying the right. If the equivalent of gun control laws were
inflicted on the First Amendment, the ACLU would no doubt raise a mighty stink
-- which makes their silence on 2nd Amendment abuses so gravely
sad.
-----------------
Guy Smith
Author, Gun Facts
www.GunFacts.info
[EMAIL PROTECTED]
1. "The broad principle that there is an individual right to
bear arms is shared by many Americans, including myself. I'm of the view that
you can't take a broad approach to other rights, such as First Amendment
rights, and then interpret the Second Amendment so narrowly that it could fit
in a thimble. But I'm also of the view that there are limits on those rights.
Just as you can't falsely shout fire in a crowded movie theater, you can put
restrictions on who can own guns and how, when, and where they may be
possessed."
___ Sen. Charles Schumer
2. "While some have argued that the Second Amendment guarantees only a
'collective' right of the States to maintain militias, I believe the
Amendment's plain meaning and original intent prove otherwise. Like the First
and Fourth Amendments, the Second Amendment protects the rights of 'the
people,' which the Supreme Court has noted is a term of art that should be
interpreted consistently throughout the Bill of Rights. ... Of course, the
individual rights view of the Second Amendment does not prohibit Congress from
enacting laws restricting firearms ownership for compelling state interests
... just as the First Amendment does not prohibit [government from legislating
against] shouting 'fire' in a crowded movie theater. "
___ Attorney General John Ashcroft
Second Amendment "pragamatists" can be switch-hitters.
****************************************** Professor Joseph Olson;
J.D., LL.M. Hamline University School of Law St. Paul,
Minnesota 55104-1284 tel. (651)
523-2142 fax. (651) 523-2236 < [EMAIL PROTECTED]>
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