When Amendments Collide

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Rarely have two sentences been more widely debated, claimed, blamed or misunderstood.  It’s fair to say that the majority of the rancor so often apparent in America today results from the reading (or lack of reading) of the first and second amendments to the United States Constitution.

There’s a photo meme going around that says, “The NRA is to the second amendment as Westboro Baptist Church is to the first amendment.”  Hard to argue with that.

I’ve always been as ardent supporter of the first amendment – and all the protections it affords – as Wayne LaPierre purports to be of the second.  The way I read history, it’s pretty remarkable that America’s founding document guarantees protection at the highest level both for and against religion (a remarkable historical development), promises that the government will not stop you from saying whatever brilliant/crazy/profound/disgusting thing you want to say or write, agrees that you have every right to gather a group large or small for whatever (peaceful) purpose you wish and gives you a path to tell your government what it’s doing wrong and ask it to change.  Nothing short of amazing.

That said, as important as the first amendment is to me, I’ve always understood that there are limits, and that those protections – particularly of speech – have been shaped by the courts over the years.  Most people who have done any reading at all on speech protections understand Justice Holmes’ prohibition against “shouting ‘fire’ in a crowded theater.” That famous 1919 opinion has since been altered, and now the courts maintain that a speaker must specifically incite someone (or several someones) to specific illegal action to be outside the first amendment’s umbrella.

Which brings us to a time in American history where it sure seems as though there are people actively inciting ardent supporters of the second amendment to violence and rebellion.  I’m not going to send traffic to Rush Limbaugh, Glenn Beck, Michael Savage, et al, but I will point you to this discussion of the topic from 2010.  If you’re paying attention, you’ve certainly seen/heard/read the ridiculous things that are being said.

It’s not my place – or even my intent  – to ask that Glenn Beck be hauled off to federal prison for the (truly ugly) things I’ve heard him say over broadcast media (on the public airwaves, no less).  I do want you to consider the legal context of what he and his ilk have been saying.

Consider how the US Code defines “sedition,” and tell me how it differs from Glenn Beck telling his audience (regarding the bogeymen in the Obama administration and scary progressives in general) “You’re going to have to shoot them in the head:”

”If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both. “

That’s not the only example, but it’s the only one I’ll cite here.

Again, I don’t know what to do about this.  Lately the Right talkers have been focused on ginning-up fear that the scary black man in the White House is going to come take all the guns away, or otherwise violate second amendment rights.  I want the first amendment to keep protecting my speech rights.  But I sure don’t want somebody with a financial interest in growing audience by inciting that audience to violence against the government to be able to keep talking to that audience.

I don’t have the answer. I’m pretty sure, however, that at some point in the not-too-distant future these two amendments are going to be brought into conflict with each other, and the courts are going to be forced to make an answer.

I hope that happens before too much blood is shed.

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