Now that a ‘red flag’ law (more precisely a ‘suspension of due process for gun owners’ law, although that would telegraph its intent too clearly) is being considered, it means we’re going to hear the following specious argument raised in its defense: ‘Rights are not unlimited. For example, you can’t yell fire in a crowded theater.’
It’s amazing to me that an argument this dumb has managed to stay around for as long as it has. Why? Because it’s so easily refuted.
First, the idea that because some rights may be limited, no rights are unlimited is just wrong. You can see that for yourself by considering this question: What limits would you say exist on your right not to be raped? There aren’t any, are there?
To say that because one right can be limited, all other rights may be limited, is logically equivalent to saying that because one animal has fur, all other animals have fur. It’s a non-sequitur. It’s the kind of thing you should learn to identify before you leave high school, and certainly before you consider running for office.
Second, there’s no law against yelling fire in a crowded theater. Here are at least three situations in which you can do it: (1) You’re a performer onstage, and it’s part of the performance. (2) You calmly announce that you’re about to yell it, but there isn’t really a fire, so no one should react to what you’re saying. (3) The performance is really loud, so you yell it, and nothing happens as a result. You’re not breaking a law in any of those cases.
Which is to say, it’s not a free speech issue at all. It’s a tort issue. There’s only a problem if (1) it’s not true, (2) you know it’s not true, and (3) people are harmed as a result.
This isn’t just theory, by the way. Penn Jillette yells fire in a crowded theater during every live Penn & Teller performance. He hasn’t been arrested yet, and he’s not going to be.
All of which is to say, the idea that you can be held responsible for damage that you cause by speaking does not justify placing prior restraints on what you can say. You can say what you want, and if it causes foreseeable harm, then you might be punished in criminal or civil court, or both. But this isn’t a limit on a right. It’s just an acknowledgment that people sometimes commit crimes and torts.
So please, by all means, let’s place that level of ‘limit’ on the right to keep and bear arms: You can carry any gun, anywhere, at any time, but if you misuse it, then you can be punished — not for the possession, but for the misuse. I believe that there isn’t a gun owner anywhere who wouldn’t be on board with this.
But this is more logic than a lot of elected representatives will be able to follow. So I recommend that, when you hear people talking about how rights aren’t absolute, you simply ask them whether their right not to be raped isn’t absolute, and enjoy the silence that follows.
(Parts of this previously appeared here.)