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. 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. Finally, one can resist attempts to articulate constitutional tests in terms of “sensible” restrictions — the way First Amendment law has developed, for instance, is through courts evaluating arguments that some restriction is sensible, rejecting some arguments, and creating more precise constitutional rules (such as the tests for punishable incitement, libel, and the like) for those restrictions that courts agree are indeed sensible.
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 supports constitutional protection for gun rights, has written about 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.