So, everyone thinks they know a bit of constitutional law. And in many cases they actually do. How many senators does your USA state get? Who is the Head of State of Canada? These are questions that a great many people can answer correctly. But as soon as the answer gets slightly more complicated, we reach a weird zone where people aren’t able to admit we are in “I have no idea” territory yet, despite the fact that they clearly have no idea what’s going on.
Case in point: Can you or can you not shout, “Fire!” in a crowded theater? Spoiler alert: YES!
When people misquote something related to fires and theaters and frozen peaches, they are referencing Oliver Wendell Holmes’ language in the decision of US v Schenck. That decision was about whether it was permissible to jail under anti-espionage laws the author of a peaceful pamphlet arguing that USA citizens should peacefully attempt to overturn the WW1-era draft. Holmes argued that yes, if you oppose a draft during time of war, even if you do so peacefully and seemingly reasonably, you can be found guilty of something like sedition and jailed. The argument that the First Amendment protects such expression and political behavior was invalid, according to Holmes. While expanding on his views without making reference to the facts of the case – content of a judicial opinion called obiter dicta that is not binding but helps lower-court judges understand an appellate judge or justice’s reasoning for use in deciding cases that have some similar elements but aren’t exactly the same – Holmes said:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
But he didn’t say this famously, because if he said this famously, people would actually get the fucking quote right. Though I’ve been annoyed at misuse of Schenck for many years now, the quote that gets me writing today is from my best beloved Wonkette:
What’s wrong with this? Well, apart from being funny and delightful in every comedic way, it terribly, terribly repeats the same mistake that everyone seems to repeat when they try to quote Holmes: they neglect the qualifier “falsely”. What’s even worse for Wonkette is that in this particular case, retaining “falsely” actually improves the metaphor. There’s no reason to leave it off. Yet for some reason, people seem to think that yelling “Fire” in a crowded theater cannot be protected by the 1stA.
And yet it can. Yet it is. All you would have to do in 1920 to shout, “Fire!” in a crowded theater in a manner protected by the 1stA is to shout it truthfully. Or hell, you can even shout it falsely while reasonably believing it to be true (for instance if someone sets off a smoke bomb and you mistakenly assumed that the smoke was the result of actual fire).
There are other things to say about the role of dicta in opinions and the fact that Schenck was later overturned, but those things are arguably less relevant (since Schenck was never about “deciding” the extent of fire-shouting protections) than the simple fact that no one seems to get the quote right. Assuming that – in a real case brought today where the facts were as Holmes presented in his hypothetical (which, given Brandenburg, is not at all a safe assumption) – the protections for shouting, “Fire!” in a crowded theater today would still be similar to what Holmes envisioned in 1919, shouting, “Fire!” in a crowded theater is actually protected by the first amendment so long as you actually, reasonably believe that a fire was present in that theater. Moreover, that’s just the extent of the first amendment protection. The 1stA doesn’t bar the government from outlawing false cries of “Fire!” in crowded spaces, but neither does the 1stA actually restrict such cries on its own. In the absence of a specific law on fire-crying, even falsely shouting, “Fire!” in a crowded theater is perfectly legal.
The 1stA doesn’t outlaw any expression on the part of citizens of, residents of or visitors to the USA.
So when you read someone say something like, “You can’t yell, ‘Fire!’ in a crowded theater,” go ahead and link them back here. That’s just bad constitutional law, passed around by people who don’t know quite enough to realize they’ve gone beyond the limits of their knowledge.
In the category of “sometimes libertarians get things right”, Penn and Teller had (maybe still have; I’ll find out in a couple months) a great bit in their show where, 10 minutes after a long bit about the first amendment, when the audience was no longer thinking about that, Penn would demonstrate how juggling flaming clubs was not very dangerous. Having set them aflame, he would start juggling, and proceed with patter something like “It’s an alcohol flame, which is not very hot, and the worst that can happen is I accidentally grab the wrong end of a club, like this…” [does so] “oh, ow. help help, fire”. [short pause] “Oh look, I just yelled ‘fire’ in a crowded theater.”
It was funny, and hopefully made some people think about the real meaning of the Holmes quote.
I guess I’ve always assumed that people were talking about false claims of “fire” when they use that example, and that since everyone knows that, it’s more succinct to leave out the qualifier. I mean, I’ve never heard anyone suggest that it would be wrong or illegal to alert people to an actual fire just because the theater was packed.
In Wonkette’s case, “witch hunt” in itself implies a hunt for something that doesn’t exist (Wicca exempted), so the idea of the cries being false is inherent in their sentence.
Still, your point stands that there’s no actual law against crying “fire” in a crowded theater under any circumstances. Unless “inciting a riot” is twisted to include “creating a panic via a falsehood.”
I always thought of it as, “you can’t say shit that’ll result in people coming to immediate physical harm” — like, say, falsely shouting that there is a fire in a crowded theater, because people will panic and rush the exit and at least one person will be injured in the process. Inciting riots or mass-panic, that sort of thing.
I’m finding this post confusing, too.
I had never imagined that anybody at all was arguing against someone shouting “fire” in a crowded theatre as an honest attempt to warn people about danger, either in the hypothetical case or in a metaphorical case. If people were broadly making completely unsubstantiated, McCarthyist sexual assault claims against Republicans, I wouldn’t consider the “fire” parallel to apply, regardless of the use or not of the word “falsely” in it, and I suspect that most people would agree with that.
(I should like to note that I think it’s perfectly reasonable to ask, “is #MeToo in U.S. politics a witch hunt?” But the answer to that appears to be in the negative; nobody’s running around saying “I have a list of 205 sexual offenders in the Republican party.”)
So does that mean we’re in agreement except on the point of whether the word “falsely” really needs to be inserted there (i.e., a disputed usage of words rather than a disagreement on facts or principles) or is there something else I missed in this about the actual laws applying to free speech in the U.S.?
@Curt Sampson:
I hear this argument all the time – isn’t the “falsely” implied?
But no. In the law a ban on shouting fire in a crowded theater is a ban on shouting fire in a crowded theater. A ban on falsely shouting fire in a crowded theater is a different law.
I do think that a great many people who use the phrase certainly believe that it should actually be legal to shout that under the honest belief that there’s a fire in the theater. However, when you carelessly repeat the first language, you cannot possibly be certain that every legalese-ignorant person within hearing distance is getting your unspoken brainwave.
Moreover, the 1stA doesn’t make any shouting illegal. Rather, it prevents the government from prohibiting or punishing certain shouting. The 1stA has limits beyond which it no longer protects speech, but even once beyond those limits, the 1stA doesn’t make anything illegal. It simply no longer protects it. To make certain speech illegal requires a separate law passed to specific effect that regulates speech that falls outside of the 1stA’s protections.
The 1stA doesn’t prohibit shouting fire in a crowded theater. nor does it prohibit falsely shouting it in a crowded theater. (Wonkette in this case did not go so far, although that phrasing is unfortunately common.)
But more than anything else, repeating this erroneous paraphrase simply encourages those who aren’t paying attention to legal niceties to believe that the limits of the 1stA were less extensive in 1920 than they actually were…
…and that’s even BEFORE we get to the fact that Schenck was overturned decades ago, and now to be criminally prohibited speech must be likely to inspire imminent lawless action (and be known to be likely to so inspire).
The dicta in Schenck implied that “dangerous + false” was the test. Brandenburg tells us the test is significantly different and in some ways more stringent.
There are many reasons to avoid even an accurate quote of obiter dicta from a case that got overruled 49 years ago, but for fucks’ sake if you’re going to quote it at all, at least get the quote right.
I just hate seeing that misquote plastered everywhere.
So to come to a proper understanding of the consequences of leaving out “falsely” I think I’d need to examine some cases where that omission is doing harm such that there are reasonable people who would think the restriction also prevents you from truthfully yelling “fire.” (The “witch hunt” example above seems too far off from the whole idea of first amendment protection to be useful to this discussion; I think it was written more for cultural resonance than to argue that there’s any parallel there, or even that that particular speech is related. Or maybe that’s all wrong, but at the very least the sentence is darn hard for me to unpack.)
That said, I think that this is a really good point:
That really helped me get a better view of the “free speech” idea as (presumably) conceived by Americans and the first amendment’s relationship to that. Or so I think. If I’m reading it right, the U.S. is then pretty similar to other countries where we very much support free speech, but realize that people can also do harm with certain kinds of speech and seek to balance the ability for anybody to say anything in any way with avoiding too much harm coming from certain uses of that.
(But wait. Wouldn’t that make the U.S. “normal,” rather than “exceptional” and special in the world, in this respect? Oh noes!)
(Oh, and if what this whole post really comes down to is pedantic grumpiness at a relatively minor (as others see it, anyway) misquote, I’m still ok with that. In fact, as a pedantic-grumpiness sufferer myself, I would approve.)
There is, in fact, a LARGE streak of pedantic grumpiness in this author, according to several sources with access to the author’s psychological profile.
Nonetheless, my grumpiness over this particular point didn’t start to spike until I had conversations with actual USAmerican activists who couldn’t wrap their heads around the facts that
1. “falsely” was a necessary modifier even in Holmes’ formulation,
and
2. with or without the condition “falsely”, this test has been irrelevant in US jurisprudence since ~1969 when Brandenburg put the nail in its coffin.
I never studied law in a US law school, my legal education is entirely Canadian. However, I did take some undergrad courses on reading the US constitution and its jurisprudence and had a long lay interest in it before I moved to Canada, so while I wasn’t an authority, I did have a rudimentary handle on the 1stA’s free speech protections that was far more accurate than anything that many of my fellow activists had…
…and when they wouldn’t listen to me, it was often in the context of activists trying to come to consensus on a message and ending up self-censoring because they falsely believed that “no yelling fire in a crowded theater” was a thing.
Of course, not having been to law school at that point, I couldn’t easily tell them what the real limits might be – not only would I have to have known local statute, but it also required the knowing the limits of negligence law. Even if you can’t be jailed for shouting Fire in a crowded theater, if your shouting creates a panic over a non-existent or a very small fire other people might still try to sue your pants off for injuries they sustained in a chaotic evacuation.
In any case, I’ve sat in more than one activist circle in the US trying to come to consensus on appropriate strategies and limits for an action where someone brings up Holmes. Although many people understood the importance of falsely, there were always at least one or two who clung to the misquoted formula because it’s what they heard over and over and they just couldn’t believe that something repeated so often might be wrong.
So going to law school just made me more knowledgeable about the whole thing: the pedantic grumpiness has been longstanding. (In Canada we actually study a lot more of the law of other countries than is typical in US law schools … from what US lawyers tell me.)
But lest you think that I’m making a mountain out of a molehill – and, frankly, lest I think that about myself – I checked to see if other folks had written angry Get Off Holmes’ Lawn screeds. And guess what? They’re all over.
You can check out Popehat, if you like. Ken actually went into some details that I neglected about how that statement of law, even if it was considered binding and not dicta, has been superceded, and how, and why.
You can read PopeHat on Holmes here. He’s much more knowledgeable about US law than I will ever be, and stresses even more than I do that the quote is a bad one to use. I think it’s okay to use -at least in certain circumstances- so long as you actually get it right. Ken, it seems, would prefer no one repeat the phrase ever again.
But all this is interesting in another way: I had forgotten the context of Brandenburg and the fact pattern. It’s very interesting that in the midst of the late-60s/early-70s draft protests that it wasn’t a draft protest case that they used to invalidate Schenck.
But now I think I’m going to write that up separately, because I think the implications would be quite interesting to a lot of readers.
============
PS:
There is quite a bit of overlap between US 1stA thought on free expression and the approaches other nations take around the world, but inevitably the exact locations the lines are drawn are different.
Unless they’ve amended their constitution in the last couple years, Australia doesn’t actually have any 1stA-type clause in their constitution at all. Instead, the Supreme Court of Australia inferred from the democratic form of government laid out in the Aussie constitution that voters would have to have a right to receive information in order to perform their constitutionally-prescribed democratic function. That right to receive information cannot be protected without protecting the right to give information – or so the court reasoned.
Thus, communication on any issue that might affect how someone votes on any issue is constitutionally protected expression under the AussieCon. But since there’s no general Free Expression clause, the farther one gets from political relevance, the less protected a statement receives.
“I want to buy you some balloons” is strongly protected if the city council recently banned (or is now considering banning) the sale of mylar balloons within its jurisdiction. Whether there is a demand for purchasing mylar balloons is obviously of relevance to any consideration of a prohibition on buying them.
The same quote, “I want to buy you some balloons,” is much less strongly protected if there’s no political relevance.
Likewise, “I want to fuck your brains out,” might very well be politically relevant in the context of a campaign to end anti-sodomy laws or anti-miscegenation laws or anti-adultery laws. In other contexts, it might not be constitutionally protected at all.
Though much of the reasoning is recognizable to US thinkers on free expression, the actual tests developed by the courts are very different because the nature of the underlying constitutional provisions are very different.
The US was an oddball for many decades because of its explicit 1stA where most of the world had only implicit protections. While many places in the world still rely on implicit protections – if they have any protection at all – Canada’s new Constitution Act, 1982 included explicit protections for expression in its Section 2, which actually resembles the USA 1stA quite closely:
If you’re familiar with the US 1stA, you’ll notice that there’s one freedom that is here left out – the USA’s right to petition the government for redress of grievances. However other than that S2 and 1stA are identical in importance and function.
So, no, the US isn’t nearly as unique as it might like to think it is – but don’t sell it short. The US got there first, and the constitutions like South Africa’s, India’s, and Canada’s all drew heavily from it, as did acts in other countries, such as New Zealand, which have a much more disjointed constitutional framework. Although New Zealand doesn’t have a single document known as its constitution, it does have Acts that have constitutional importance and an authority – similar to the US constitution’s authority – to override other laws and governmental actions and limit or impinge upon what might otherwise seem to be a realm of governmental discretion to act. In this case, the Act would be New Zealand’s Bill of Rights Act 1990. In section 14 of that Act, it reads:
This effectively constrains government action in a manner similar to the US 1stA or the Canadian s2 or the Indian Part III, Article 19, s1a, even though unlike those other countries it is not officially a part of the same document that creates and defines the structures and powers of a country’s government.
Ken White of Popehat also has a nice podcast about 1st Amendment issues, “Make No Law”. New episodes don’t appear often, every month or two, I guess because he’s pretty busy with lawyer-y things plus his writings on Popehat itself.
https://legaltalknetwork.com/podcasts/make-no-law/
Cryp Dyke, thanks for all the work you’re putting into this. It’s a very interesting discussion and I’m learning a lot.
Reading your link on Holmes and the Wikipedia page on Brandenburg I can now see what you find annoying about the incessant Holmes-quoting, especially given that he seemed more often on what we (now) would consider the more oppressive and wrong side of the free speech debate. That the different test in Brandenburg is the one currently in use is the cherry on top. (Sadly, this now has me annoyed as well, which is hardly something I need more of, given my tendencies.)
The idea that “the United States got there first” certainly has some merit, but I think that there’s a good argument to be made to see it as a major step in a long, multi-century (perhaps even multi-millennial) process of building a new conception of how we ought to govern ourselves through law and individual rights rather than sheer power, rather than what seems to me the typical American view of it as de novo blooming of this. Certainly the myth (if not the reality) of the Magna Carta, for example, was a major part of this. In that light, and the experience of democracies outside of the U.S., the focus on the U.S. constitution seems overblown, especially since many of the rights it now protects have come through changing interpretations of it over the years rather than being there from the start. It seems to me clear that a constitution or similar document alone is helpful in keeping one’s aims clear, but the real grant of rights comes from a complete system of governance that needs to be working well.
(All this said, I’m far from qualified to make serious, detailed arguments about this.)
I would argue that. Most of the examples that you’re thinking of did not happen through “reinterpretation” but rather happened through amendment. Let me go over some examples.
Slavery was ended through amendment.
Women got the right to vote through amendment.
Segregation is not a good example either. Ending segregation didn’t require any “reinterpretation” in the sense here. Instead, segregation was ended by simply applying the law as written, specifically the 14th amendment, according to an original plain text meaning standard (which reaches a different conclusion than an original intent standard). I think that “original plain text meaning” plus precedent is a good default for jurisprudence.
Offhand, abortion rights is the closest thing to a good counter-example, but even then I think that citing the 9th amendment gets me basically to the pro-choice conclusion without needing to resort to the abominable kind of jurisprudence that many people mean when they say “reinterpret” in this context.
What else is there? Miranda rights? Right to have legal counsel appointed by the government for you when facing “serious” criminal charges?
I’m probably forgetting some other rights that make good counterarguments to my position. You’ll have to let me know.
I think that certain versions of the “living constitution” are extremely pernicious and dangerous. The constitution should not be a malleable document, subject to change simply by the whims of the judges or by the whims of the people without an amendment. If the constitution is bad, then it should be amended, and if there’s not enough support to amend it, then the people should deal with it, and in extremely rare cases where there isn’t enough support to amend the constitution, perhaps should be a revolution and civil war to replace the constitution, i.e. the American Civil War and slavery. (I know that saying the civil war was all about slavery is a somewhat incorrect generalization, but it’s still mostly correct to say that the civil war was mostly about slavery.)
For a concrete example, there should never come a time – barring a new amendment – where the supreme court says that it’s ok for congress to pass a law that requires everyone to swear allegiance to Yahweh. There must be limits on the malleability of the document, and I again assert that “original plain text meaning” (plus precedent) is a good place to start to find this limit.
We liberals, e.g. left-leaning persons, e.g. Democrats, in America will win on this standard on practically every issue, especially with a proper application of the federal 9th amendment. We Democrats should adopt the rule of law standard when it comes to constitutional protections and civil liberties. Offhand, the only big issue that Democrats don’t win with this standard is gun rights.
Well, the second amendment is the first obvious example of heavy interpretation that comes to my mind, and that one seems inevitably bound up in interpretation:
What’s this stuff about a militia? Is that merely something irrelevant the founders put in for fun, like, “Noodles being Tasty, the right of the people to keep and bear Arms, shall not be infringed”? Or are they saying that the right to “keep and bear Arms” exists only when connected to participating in a “well regulated Militia” in some way? (And who would organize and be in charge of that?)
Leaving that open for the moment, what sort of arms do people get to keep? Nuclear bombs are pretty clearly “arms” (after all, that’s was mainly what we were talking about when we talked about the “arms race” in the 50s through the 80s); should any citizen be allowed to keep one of those? It appears that the vast majority of Americans are on the “no” side, though that does appear to go against the literal interpretation of the amendment. As you move towards progressively less destructive arms we get a changing mix of interpretation; fewer people believe that the amendment doesn’t apply to rather less damaging arms such shoulder-launched surface to air missiles and anti-tank weapons, even fewer yet to hand grenades and heavy machine guns (though those are universally banned for civilian ownership in the U.S.), and so on, down to tiny arms such as handguns. Where you sit on this scale is and always has been a matter of interpretation.
To Curt
A big part of the problem is the change in meaning of several of the terms, plus a reorganization of military structure, and the creation of police. Let me give a lengthy description of the necessary background knowledge.
“Militia” is just another word for “the population with weapons”. Militia is something that is exists in contrast to (professional) military, e.g. the army. A militia person is a person whose day job is something other than military i.e. a carpenter, whereas an army person is someone whose day job is being a soldier. Historically, militia was defined by common usage and also by law to consist of all persons in the population of fighting age, often specifically all able-bodied male adult citizens between the ages of 17 and 45. Even today, federal law defines the militia as consisting of basically all able-bodied male adult citizens between the ages of 17 and 45. I am a member of the militia, and I have never gone to any military training, and I have never owned a gun nor fired a gun.
The founders didn’t just want everyone to have the right to own a gun, but they required by law that everyone own a gun. (Again, by “everyone”, I mean everyone of legal status, e.g. citizen white adult males.) In one of the Federalist papers, 29 or 46, I forget which offhand, the author calls for the creation of a law that requires everyone to buy a gun. Shortly after that, the federal congress passed the second federal militia act of 1792, which required everyone to buy a gun and a laundry list of associated military equipment. My understanding is that enforcement was sometimes lax, and that there was lots of loopholes, but the simple face of the law required it for practically everyone (e.g. white adult able-bodied male citizens). I have further evidence that this was a personal obligation, and that you faced stiff monetary penalties for failure to comply. I also have further evidence from a report to the federal congress circa 1800 that most of the guns of the militia were privately owned and held.
The historical phrase “well regulated” simply meant “in proper working order”, and did not carry the connotation of “controlled by the government” that the phrase does today. Tangent: Ditto for the word “police”. You can see from many historical sources, such as the Federalist 29 and 46, and other sources. From these sources, it’s especially clear that “well regulated militia” simply means “a national population that is well armed and well trained in war”.
You also need to understand the historical context of the word “militia”. The practice of militia goes back like 1000 years to the Assize Act or whatever of England. Originally, it was purely a duty imposed by the king on his subjects that they have a certain readiness for military operations, including the requirement to possess and maintain certain weapons at home. Over time, with the growth of English liberty in England, this morphed into a simultaneous obligation and right. We see this with the English Bill Of Rights of 1689, which was a response to the king trying to disarm the Catholics or the Protestant population (I always forget which). So, the personal right was well established in 1689 in England, right around the same time as the American independence and the writing of the American federal Bill Of Rights.
There is one other aspect which is very poorly known which is hugely important to understanding the American federal second amendment, and that is the role of police according to the founders. Police as they exist today in the American and English context did not exist in 1800. Police in the American and English context was basically invented by Sir Robert Peel with the creation of Scotland Yard and his philosophy of policing circa 1830. Before that, catching criminals and prosecuting criminals in court was a private duty and obligation and responsibility, and several American State constitutions of that time explicitly say so.
Also, circa 1800, marshals, constables, and other officers had basically zero special powers or immunities concerning detention, arrest, search, and other seizures. They had to obey the same laws as everyone else. The only kind of arrest was a citizen’s arrest or an arrest by warrant. It was also legal to resist unlawful arrest, unlike today where it’s basically always illegal to resist unlawful arrest by cop. I remind you that as late as 1900, the United States supreme court ruled that it was permissible in some situations to shoot a cop in self defense who was performing an unlawful arrest – see the case “Bad Elk”.
In American in 1800, there wasn’t police as we really have them today. There was the occasional constables, marshal, etc., but they had to obey the same laws as everyone else. However, there is one huge, glaring exception. There was a force of persons who did greatly resemble our police that the founders did have experience with, and that was the standing army of the British king. Remember that the British army was sent to America not to squash a rebellion, but rather to enforce certain tax laws. There was no talk of rebellion yet. All of the protests were phrased in terms of being loyal British subjects with their rights as British subjects. Rather, the causation is opposite of what most people know. It was the imposition of the British army which caused the rebellion. The two immediate reasons that the common person were persuaded to go to war for independence was the imposition of a police force who did not have to follow the same laws as everyone else for arrest, search, and other seizure, and use of force, and also the seizure of some guns of the militia, e.g. individual Americans, by the British army. Check the Declaration Of Independence to see their complaints, and the complaints against the British standing army apply equally well to today’s police. They complained about the police shooting people and getting away with it, sometimes being subject to mock trial, just like today and Black Lives Matter.
Why does all of this matter? Many leftists today wrongly say that the federal second amendment is about empowering or protecting the rights of the States to keep military, or slave patrols, or something, but with this historical knowledge, it’s all nonsense. The idea of a select force of persons with superior weapons rights and search and seizure powers was anathema to the founders. It’s literally true that the common person thought that they just fought a war to get rid of police and to protect their personal right to guns.
For much more information, I strongly encourage you to read the paper “Are Cops Constitutional?” by Roger Roots. The answer is not a simple yes and no, and the question is answered in a context like “what would the founders think about modern police?” and not sovereign citizen nonsense. The paper covers all of the ways that the modern police state abuses rights that the founders took for granted, and some that they even explicitly spelled out. The short answer is that the totality of modern policing violates many of the civil liberties that the founders took for granted and some rights which they even spelled out in the Bill Of Rights.
This also matches the description of many other advocates today who focus on the surface problems but not the underlying causes, but I think it’s reasonable to say, like I often do, that the entire thing should be (metaphorically) burned to the ground and rebuilt, because we Americans do not have a justice system, but we Americans have a racist railroading system. Just one data point: Roughly 95% of criminal charges end in plea bargain. That means in almost all criminal prosecutions, the prosecutor is using extra charges in order to extort the prosecutor’s victim, aka the defendant, in order to agree to lesser but still serious charges. This is simply incompatible with justice, and there is no justice in the current system.
This grammatical construction is unique in the federal bill of rights, but it was common in the State constitutions and State bill of rights of the time. I strongly encourage you to read this paper.
http://www2.law.ucla.edu/volokh/common.htm
In short, the first clause has only a small amount of legal weight. It is something like window-dressing, just like the preamble of the American federal constitution is also mostly window-dressing with very little legal weight. If you read the paper and see the many examples, this position becomes undeniable.
It seems that we have now gone completely off the rails, and off into a separate pet peeve of yours. Your original claim, which you have now abandoned, is that it is necessary to employ what I consider to be illegitimate jurisprudence in order to guarantee the individual rights of the people. I just want to make it very clear that I am now no longer addressing the original claim, and neither are you.
Basically everyone agrees that no private person should have nukes. For the extremely small minority who disagree, we can safely ignore them. I would also think that any adult should be allowed to own a kitchen knife. I used to take this proposition for granted, but then England recently had to go off the deep end and start putting in place heavy regulations on the purchase and shipping of kitchen knives, which is making me lose even more faith in humanity. However, with that out of the way, it becomes obvious that the question should be: Where do we draw the line? Surely we should allow personal ownership and possession of kitchen knives, and surely we should disallow personal ownership and possession of nukes. The question, with or without the federal second amendment, is where that line should be drawn. I argue that the federal second amendment, until repealed, has something to say about where that line should be drawn.