Op-Ed: Guns, speech and the courts

By Sim Evans

Each generation must ratify the Constitution, or else it is of no account. The founders were cognizant of this when they provided the amendment mechanism, whereby future generations might adjust the Constitution from time to time. The absence of amendments was deemed proof of its tolerability.

But Americans have chosen a third course; they will neither abide by the Constitution, nor will they change it. Instead, they choose to interpret their way around it, and thereby hangs the tale.

The Second Amendment has long been the neglected stepchild of the Constitution. Dressed in rags, it stands without, and observes the bounty within. Commonly viewed as the illegitimate result of the king’s youthful indiscretion, the Second Child is a pariah, to be marginalized and ignored.

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By contrast, the First Amendment, dressed in purple raiment, always sat at the head of the table, secure in the belief that the recompense of the cornucopia would be endless.

But lately the firstborn of the Constitution has fallen upon hard times. Distended and bloated beyond recognition, it has become the plaything of the pagans and the secularists, and a pimp for the politicians and pornographers. It is ironic to see the fortunes of the First follow in the footsteps of the Second.

Recently, Congress passed the Bipartisan Campaign Reform Act on April 2, 2001. This legislation inhibits free speech, especially political speech, within 60 days of an election. It so blatantly violates the First Amendment that even its most avid congressional proponents freely admit it. Then they nonchalantly dismiss this travesty by saying, “Don’t worry, the Supreme Court will straighten it all out.”

Judging from the oral argument, it is unlikely the court will find the legislation unconstitutional in its entirety. Neither is it likely they will give the legislation a clean bill of health. Therefore, the likely result will be an act that is unintelligible, and free political speech will become problematical, for then only the lawyers will know what is permissible.

Congress is also moving towards severely limiting the number of outlets a media conglomerate can own. More ominously, they are threatening to reinstate the so-called “Fairness Doctrine.”

The Fairness Doctrine became FCC policy in 1949, and remained in effect until the Reagan years. In its simplest form, it means that local media cannot air a partisan or controversial position without providing equal time, i.e. three hours of Rush Limbaugh requires three hours of Hillary Clinton. Faced with a plethora of arcane regulations and potential lawsuits, the media will opt for bland, non-controversial subjects, and the incumbents will rule without opposition.

More recently, the Justice Department is lobbying for subpoena powers independent of judge or grand jury. The idea is to enhance the speed and secrecy with which the FBI can act. Can anyone doubt that the writ of habeas corpus will likely be the next casualty?

All these policies and regulations are designed expressly to regulate free speech or, more accurately, to stifle it. The First Amendment now rests alongside its younger brother in a near-catatonic state, unrecognizable and almost comatose.

First Amendment rights, once so jealously guarded, are now privileges, subject to convoluted regulations, the whim of the courts, and subservient to whatever “compelling interest” the government chooses to invoke.

And now the Supreme Court of Ohio has taken one last gratuitous swipe at the Second Amendment, as well as the Ohio Constitution: “There is no constitutional right to bear concealed weapons.” Thus sayeth Justice Pfeifer. One searches in vain for a manner in which one might exercise the right, guaranteed by two constitutions, to bear arms and still comply with the law(s) as interpreted by the courts.

That bastard, the Second Amendment, must now be taking perverse delight in watching the bastardization of the First. The wolf, having exhausted the takings at the fringe, is now in the midst of the flock.

Things are going in a rush now, and freedom is on the wane. Unfortunately, this trend is often welcomed, for servitude provides a peculiar security, while freedom offers no guarantees.

It would be unseemly to bring these tribulations before you without proposing a solution, so here it is: Let us repeal the Bill of Rights in its entirety. Then let us promptly re-enact it, word for word. In this manner, we can rid the bill of all the extraneous baggage attached by the courts, and undo 200 years of judicial mischief. It will be sort of like pressing the reset button on the game of freedom. We can start all over.

Sim Evans is a resident of the Franklin area. His e-mail address is [email protected].

Published 10.01.03 in the Middletown Journal.