Posted by Eugene Volokh:
"Sensible Restrictions" on Gun Rights:
http://volokh.com/archives/archive_2007_07_15-2007_07_21.shtml#1184777637
A reader writes, responding to various calls for "sensible
restrictions" on gun rights:
Anyhow, I propose sensible restrictions on the first amendment!
Just sensible restrictions, e.g., the NY Times should not be able
to publish anti-terrorist methods, like how the DoJ searches
financial records to find terrorists. That's a reasonable
restriction, isn't it? The NY Times already admitted that if they
had to do it over again, they would sit on the story.
Perhaps if someone such as yourself were to (tongue in cheek) make
such a proposal, the media morons might be able to see the problem
with "sensible restrictions" on gun ownership -- they might then
wise up to the bill of goods being sold to them by the Brady
brunch.
Well, the trouble with this argument is that there are of course
already many sensible restrictions on what speakers, including the
press, may say and write. As to the mainstream press, consider libel
law, false advertising law, and copyright law. As to other speakers,
consider incitement law, fighting words law, threats law, child
pornography law, and obscenity law. Consider also restrictions on what
government employees may say, including to the press, such as laws
that make it a felony to leak income tax records, certain kinds of
classified materials, and the like. And consider various
content-neutral speech restrictions, such as bans on soundtrucks, laws
regulating the time, place, and manner of demonstrations, and the
like.
What's more, shifting from the descriptive to the prescriptive, some
of us may disapprove of some of the restrictions (for instance, I
disapprove of obscenity laws), but I expect that nearly all of us
would accept some restrictions on speech. A categorical rule that all
speech is protected, with no room for at least some sensible
restrictions, would be a pretty poor rule.
Now of course one can argue that certain kinds of supposedly
"sensible" restrictions aren't very sensible, for instance because
they interfere substantially (and therefore unjustifiably, the
argument would go) with people's ability to defend themselves, or
because they are unlikely to accomplish anything and thus don't
justify even modest interference with self-defense. And one can also
warn against the tendency to equate "sensible" restrictions with
"reasonable" restrictions and there with the "rational basis" test,
under which nearly any restriction -- including a total ban on all
guns -- would be constitutional.
But it doesn't make sense to condemn in principle all calls for
"sensible restrictions," on the theory that we wouldn't or shouldn't
tolerate "sensible restrictions" on speech or press or other generally
constitutionally protected activity. The law does tolerate some such
restrictions, which we think particularly important and sensible. The
law should tolerate some such restrictions, even if we think those
restrictions should be fairly narrow exceptions to the rule of general
protection of speech. American law has never taken an absolutist view
with regard to speech protection. So the analogy to speech protections
-- already generally limited given the fact that different kinds of
constitutionally protected activity raise different concerns, and
analogies between activities can therefore only go so far -- strikes
me as a poor way to argue in principle against supposedly "sensible
restrictions" on gun rights.
And, as readers of this blog know, I say this as someone who
[1]supports constitutional protection for gun rights, has written
about [2]state constitutional rights to bear arms, has often noted the
possibility that even seemingly modest restrictions may lead to
broader ones, and has often noted that many gun restrictions are
highly unlikely to work. Consider how weak the argument I quoted above
would be to those who support gun rights less than I do.
References
1. http://www.law.ucla.edu/volokh/beararms/testimon.htm
2. http://www.trolp.org/main_pgs/issues/v11n1/Volokh.pdf
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