Aug 29 2009, 12:00PM
Can You Carry A Gun Near Barack Obama?
Megan McArdle, Jason Zengerle and Will Wilkinson have been having an argument about whether it's acceptable to carry guns to health-care protests and near the president of the United States. I don't want to try to summarize the whole debate, but I do want to comment on one aspect of it. Jason Zengerle takes the position that a gun-toting protester "makes the job of the Secret Service that much harder--and therefore
increases the risk that the Secret Service won't be able to stop
someone...who does want to try
to assassinate the president." Will Wilkinson responds:
The silliest thing is Zengerle's casual assumption that if the free and peaceful exercise of an enumerated constitutional right "takes up resources," then the state may therefore limit it. I doubt he'd like to generalize this principle.
First, I'm not totally sure Zengerle's position is that the state "may therefore limit it." But even if it were, I doubt Will would like to generalize a principle dictating that the enumerated right always trumps state interests! This isn't complicated. Let's say we have a crowded theater. And let's say I exercise my seemingly enumerated First Amendment right and shout the word "Fire!" And let's say that several dozen people are grievously injured in the ensuing chaos. (Let's further assume that many of these people are recipients of generous, reliable Medicare benefits, so the state bears a cost.)
The fact that this situation is so preposterous is exactly why the law prevents it from happening: courts have created common-law doctrines like "fighting words" and "clear and present danger" for the obvious reason that the exercise of a right can have dire consequences, and some consequences are too costly to bear. Will might think that in this circumstance the cost is not prohibitively high, but there's nothing silly about a suggestion to the contrary.
A second point is worth making. The vast majority (all?) of our enumerated rights are negative: The say that the state can't stop you from engaging in a particular activity. But the fact that some activities are protected does not mean that these activities are worthy of special moral praise. The mere fact that you are carrying a gun or speaking freely or refusing to self incriminate at your trial (a la OJ Simpson) does not and should not insulate you from criticism. It's perfectly fair game to acknowledge that a certain activity is legally protected while also taking the position that lots of the people engaging in it are idiots.
Conor, your example is flawed because it conflates two factors and says we value both of them in concluding we should be compelled to not shout "fire" in a crowded theater.
Both reasons above are morally reasons not to shout fire in a theater, but only one of them (that you're harming others) constitutes a reason the state can prohibit you from shouting. If I organize a 2 million person march on Washington for some cause, and the Capitol Police has to spend a few million dollars extra to ensure that public safety is maintained, then that's just too bad for the Capitol Police. Even if I organize it without good regard to public order. Enumerated rights trump inconveniencing the state.
I should not do X does not imply I should be forced to refrain from doing X by the state.
Peter--
I'm prohibited from yelling "fire" in a crowded theater regardless of whether anyone is actually harmed. The state assesses the probability that someone may be harmed by my action as unacceptably high and therefore limits my rights, regardless of whether I agree with that probability assessment. The state can, should, and does limit the risk of high expected costs (probability of event * consequences of event) by limiting individual rights.
Conor already established the base level risk of presidential shooting (which is even higher since single shot pistols went out of fashion), and there are many reasons, enumerated at length elsewhere, for believing that Obama faces more than "normal" risk. Just in case it needs to be said, the costs of such a shooting could be catastrophic, regardless of one's political orientation. Conor's "fire" analogy is certainly apt in that case.
There is a secondary issue, which is that the state has a right (and a history) of limiting one individual's rights when they infringe on another's, e.g. I may believe that the white man is the devil, and I may exercise my freedoms of religion and speech by proselytizing this belief to anyone who will listen to me, but I'm still prohibited from exercising this belief by discriminating on the basis of race when hiring, firing, pricing my goods, renting out my house, making loans from my bank, etc.
Similarly, one could argue (and many have argued) that exercising one's 2nd amendment rights in the context of emotionally charged political protests is not primarily for the purpose of Presidential violence, but rather for the purpose of limiting other people's 1st amendment rights through intimidation. A "flawed" and hyperbolic analogy is that of armed Klansmen peacefully assembling and loudly protesting outside of a civil rights rally in Mississippi in 1962. It seems pretty evident that were such an event to occur in 2009, the Klansmen's right to assembly would be circumscribed by the state, and rightfully so.
This isn't about constitutional rights. If a protest had taken place a hundred years ago in Kansas, many of the people in the audience would have been armed. No one would have thought to get upset, because guns were seen as normal. Tools for self-defense, not signs of criminal intentions.
The culture has changed, not the law. These protesters take their guns to make a cultural point ("guns are normal") and a political point ("don't even think about letting the government make life and death decisions in health care.")
The people who get upset are putting rationalizations around their cultural signals ("guns are for serial killers and thugs") and cite these "fire in a theater" arguments to rationalize their bias ("you'll do what the majority tells you to do.")
Arguing that this is about law and state resources is just missing the point.
One hundred years ago, the country was 8 years removed from the assassination of President McKinley by repeated pistol shots at a public exhibition in Buffalo.
I'm pretty sure that if President Roosevelt (or Taft) had shown up at rally in Kansas with openly armed demonstrators in 1909, such demonstrators' access to the President would have been severely curtailed by the Presidential security detail, particularly if popular media or religious figures were opining about the danger he posed to Kansans and/or publicly praying for his death. Just a guess.
And Lee Harvey Oswald was just exercising this 2nd amendment rights right up until the moment he raised the rifle to his shoulder, aimed, then pulled the trigger. Who would mind if say 25 members of the Aryan Nation showed with with assault rifles at the next Presidential Town Hall? Would they be arrested for not getting a permit to demonstrate. But let's not violate their 2nd amendment rights. Really. The NRA have no problems with that at all. Cause we know they are no more insane or dangerous then Glenn Beck.