The First Amendment, the Second Amendment, and Article V

I’m not sure how much attention to pay to petitions on the White House site. Once upon a time, getting 25,000 written signatures on something through word of mouth or newspaper articles would have been a big deal; but today, getting that number of electronic signatures using e-mail and social media strikes me as not that difficult. And even if you get 75,000 signatures, that 1/40 of 1% of the population believes something — or is at least willing to sign something in order to express their visceral views, whether they actually support the details of the proposal or not — doesn’t tell you much.

This having been said, I occasionally post on such matters (such as the petitions to strip Westboro Baptist Church of tax-exempt status, or to otherwise “regulate” the group); so I thought I’d chime in on the Piers Morgan petition (now at about 75,000 signatures):

British Citizen and CNN television host Piers Morgan is engaged in a hostile attack against the U.S. Constitution by targeting the Second Amendment. We demand that Mr. Morgan be deported immediately for his effort to undermine the Bill of Rights and for exploiting his position as a national network television host to stage attacks against the rights of American citizens.

Whether noncitizens may be deported for speech that is constitutionally protected from criminal punishment is not clear. But to my knowledge there’s no statutory authorization for such deportation; the government can’t just deport anyone it pleases (even when the person is not a permanent resident), but has to follow federal law on the subject. And even if Congress could authorize the deportation of people for speaking out in favor of various laws, it hasn’t done so at this point.

But beyond this — and even setting aside the question whether deporting someone for his speech should be seen as violating the First Amendment — the U.S. Constitution doesn’t just contain the Second Amendment. It also contains Article V, which specifically provides that the Constitution may be amended.

Even assuming that Morgan wants to argue for gun controls that would violate the Second Amendment as you think it should be properly understood, that’s not a “hostile attack against the U.S. Constitution,” any more than arguing for repeal of Prohibition in 1925 or the enactment of the income tax in 1910 was a “hostile attack against the U.S. Constitution.” He’s not calling for violent revolution. He’s just arguing about what the right policy ought to be, and We the People have the ability to implement that policy, often without a constitutional amendment but sometimes with.

I wouldn’t support such an amendment, but the possibility of amending the Constitution, whether as to the Second Amendment, the First Amendment, the Fifth Amendment, or what have you always have to be on the table, if we are to govern ourselves rather than be governed by judges interpreting the words of others who lived 220 years ago. (I realize that Article V does limit amendment in a couple of ways, but those aren’t relevant here, and in any event even those limitations could be removed, whether through an amendment to article V itself or through a newly and peacefully enacted Constitution, much as our Constitution replaced the Articles of Confederation even though it likely did not comply with the Articles’ provisions for amendment.)

If we don’t want to listen to what Englishmen have to tell us, of course, we don’t have to. But trying to kick them out for their speech — perhaps for fear that some of our countrymen might find it persuasive — is a bad idea. Even if it doesn’t violate the First Amendment, it violates the principles of open public debate, through which Americans get information about a wide range of ideas (whether implementable right away, or requiring a constitutional change) from a wide range of sources, citizen and otherwise.

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