A "Reasonable Restriction" on Shouting Fire

I got into it over the weekend with my future mother-in-law.

Sparring about rights with a Government and History Teacher: Bad Idea.

Let's just say we agree to disagree on the meaning of rights in society.

Don't get me wrong. I respect her highly. I consider this an educational process. I can always learn from her and I hope she can learn a thing or two from me.

For her, the Constutition is a "living document" meant to be interpreted in the context of the times and the needs of society.

For me. the Constitution was written by men who said what they meant and meant what they said. Some fundamental values are timeless and should stand above the tumult and fickleness of the masses.

Not surprisingly, the one area we disagree 180 degrees on is the meaning of the 2nd Amendment. I think I might have scored a point or two but overall, it was a stalemate. She is of the opinion that the greater good of society takes precedence over the right of the individual to bear arms. Handguns was the topic of discussion (in regard to the post about O'Malley's supposed executive order) but we did stray a little into "assault weapons".

Her concerns were largely emotional and boils down to "violence never solved anything".

Unfortunately, I didn't think to invoke Heinlein in response to that at the time.

It's not that I meant to start an argument. Actually, it was more of a "vigorous discussion" and something that I do enjoy thoroughly. Perhaps in future rounds I can educate her a little and perhaps persuade her to do a little research (especially in her view that "assault weapons" are used a lot in crime. Maybe she'll believe the FBI Uniform Crime Report instead of me but I digress).

The point of this post is in when we got to discussing what constitutes reasonable restrictions on rights. With regard to gun control, she is of the view licensing and training should be required, background and mental health checks should be mandatory, certain guns are not necessary in society (both types I own) and registration is not unreasonable in order to prevent crime. Not all of this was stated in this particular conversation but I have heard this stated outright in various past conversations. For example, she was quite shocked to realize I didn't need a permit or license to possess or move my firearms around.

The area that got me going was when she brought up the famous rights restriction example: "You can't shout 'Fire!' in a crowded theatre.".

The anti-gun forces and the ignorant (she is definitely not the latter) often cite this as an example of how a right can be restricted for the greater good of society. It was my response to this that I think did manage to get her to think for a moment.

They say you can't shout 'Fire!' in a crowded theatre. It is illegal. The injury and panic that would result from such a First Amendment act trumps your right to do it. Thus, you can't do it. Your 1st Amendment Right to Free Speech is thus restricted.

It is nothing of the sort.

People get confused when I state this. They say "But you can't do that! It is against the law! It endangers people! You are restricted from doing it!".

No, I am not.

There is nothing stopping me from standing up in a theatre and shouting "Fire!" in the absence of such. Panic and riot will ensue. And shortly thereafter, so will the handcuffs around my wrists and the criminal charges for doing so.

But at no time am I restricted from doing so! I have exercised my free speech rights to do so, unfettered and unopposed. It is only after I do so does the punishment commence, not before.

It is only by my irresponsible exercise of my Right do I suffer punishment but not for the exercise of the Right itself.

And therein lies the difference in understanding. Most people can't or won't make the fine distiction between the law saying I can't do something and my actually doing it. And the law agrees with this distinction. The law doesn't say you can't shout "Fire!". It only says that "if you do and it is unwarranted, here are the consequences of exercising your right irresponsibly".

You are expected as a citizen to exercise your rights responsibly. And as long as you do so, they will not be restricted or denied to you. If you are irresponsible with your rights, you will be punished and have them removed from you by a jury of your peers. This is the way it works.

So why is it the idea of restricting 2nd Amendment rights by citizens in the absence of their abusing those rights considered justified?

That is when they turn to the argument above. That by stating you can't exercise a right "for the greater good", it is reasonable. With the understanding, in my view, that no such restriction exists and it only comes into play after you exercise the right in an irresponsible manner.

You can dance around the distinction all you like here since it is speech we are talking about. Spoken speech is intangible. It cannot be contained or controlled. You can't really restrict it prior to its use. Not so with firearms which are tangible metal and plastic. These you can control beforehand. Restrict them. Guide them into "the proper hands".

My response was you should restrict such speech in the same way you propose to restrict firearms under this umbrella. After all, if it is good enough for guns, it should be good enough for speech.

Because the law says you can't shout "Fire!", by extension we should make laws that prevent you from a getting a gun without proving you won't misuse your right to have one. That the pre-emptive restriction for the greater good trumps your individual rights. Society wins and damn your inconvenience or outrage over such restrictions. Unlike for speech, we can enforce restrictions on guns beforehand.

I argue that what is fair for the rights that you don't like is fair for the ones you do. I say that 1st Amendment rights can be subject to the same restrictions you would wish to impose on me with regard to firearms.

So my response to the idea that a right can be restricted in the context of shouting "Fire!" was as follows...

Let's say there is a rash of "fire shoutings" in theatres. A bunch of kids are going to movies, shouting fire, creating panics and leaving in the rush. No one catches them and they are having a grand ole time laughing amongst themselves at the havoc they are creating.

Movie ticket sales plummet. Patrons stay home. Movie theatres demand the government do something to curb this public health menace and save their declining revenue as a result of these troublemakers.

In response, the government decrees that due to the actions of a criminal few and for the greater good of the community-at-large, no one will be permitted to shout "Fire!" in a theatre anymore.

But wait, you already can't do that! The right is already "restricted".

Now they are going to make sure it is properly restricted and they pass a new law. The law requires that anyone who isn't a licensed "Fire Shouter" will be required to have their mouth duct taped shut prior to entering the theatre. That way, "fire shoutings" will be prevented and people can enjoy their movies in peace. Each theatre will post licensed individuals (ushers) in each theatre to keep watch for fire so that any shout of "Fire!" will be a real one.

A private citizen can apply for a license to not have to wear the duct tape only after taking a speech safety course and attending a minimum of 5 movies duct taped so they understand that with rights come responsibility and they understand the gravity of said responsibility in having an unrestricted tongue over those who might abuse theirs.

Everyone wins. That way, the only calls of "Fire!" will be legitimate and the people are only mildly inconvenienced. After all, what's a couple hours of duct tape for the greater good of society?

No one would accept such a "restriction" on their free speech rights. It would be beyond the pale to say the least. Totally unwarranted and not in keeping with how our laws and society are supposed to function. But in keeping with the idea of "reasonable restrictions" on a right, this would be a reasonable response since the same people who would oppose this are perfectly content in doing virtually the same thing with regard to firearms possession.

The difference being, for us the "fire shouters" are actual criminals misusing guns. But the actions of this small minority are essentially serving as duct tape (and straight jackets) on the law-abiding. But in my future mom-in-law's eyes, such restrictions are necessary because of the criminal acts of a few.

She got my analogy with regard to shouting fire. But to her, the two issues are separate. Gun restrictions and speech restrictions are in different leagues. One item can kill, the other cannot. I heartily disagree. Speech can kill. Shouting "Fire!" proves it.

But until you actually shout "Fire!", you've done nothing wrong. Punish the act afterwards, not before. But she couldn't see the distinction with the misuse of guns.

To her, the restriction is necessary beforehand to prevent carnage after the fact. That the restriction of the rights of the majority is justified because of the potential for irresponsible exercise by a minority. That the greater good must triumph over the individual.

Sometimes, the greatest good is allowing the individual to stand alone and responsible for their acts and to leave it at that rather than punish those pre-emptively who have done no wrong.

We agreed to disagree.