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Thursday, December 18, 2014

Rights debates merit consistency

Opinion editor
opinion@dailylobo.com

We’ve all been hearing the same gun control arguments based on the Second Amendment for years. One of them is that because the definition of “firearm” has been so completely distanced from what the Founders had in mind when they drafted the Bill of Rights, the sweeping controls on guns of all types currently being debated should be allowed; that because the Founders had no idea what guns would become, the Second Amendment should be considered outdated.

However, the logic that we can eschew the Second Amendment because the technology and capabilities have evolved over the centuries just doesn’t seem to hold when applied to other amendments.

Take, for example, the First Amendment, which is, incidentally, extremely relevant to what the Daily Lobo does every day. Back in the 18th century, “speech” amounted to the spoken word, printed word, written word or engraved word. That’s a very narrow definition of what constitutes speech today. The Founders never knew of, nor envisioned, the Internet, TV and telephones, or even Morse code and records for that matter.

But that doesn’t mean we should strip all modern forms of communication of their protections, as would follow from applying the aforementioned Second Amendment logic.

The same absurd logic can also be applied to Fourth Amendment rights. The Founders never envisioned cell phone metadata, text records or web page histories, to name a few forms of 21st century property. They, once again, only considered the physical property of the day.

Yet many people of all political persuasions persist in arguing that the government taking and looking at these records, especially using what can be argued to be an overly-broad search warrant, constitutes an intrusive “search and seizure.” Few would say that the Fourth Amendment protections against unlawful search and seizure shouldn’t apply to digital property just because the Founders had never thought of it.

Now, going back to the gun control argument, I’m aware of the common rebuttal to what I’m saying now: the idea that speech is speech and isn’t designed from the ground up to kill people (not directly, anyway, but that’s another matter). By contrast, guns are only used to kill things, and therefore we shouldn’t use the same generous interpretation of the First (and Fourth) in Second Amendment cases.

This argument, much like the previous one, doesn’t hold true.

As a credit to my opponents, I will concede that it is indeed true that guns can directly kill, whereas words may only set into motion events that can lead to injury or death. However, both firearms and words, depending on how they are used, can lead to life-altering and society-altering incidents and consequences.

The wider issue at stake here is the dangerous slippery slope of letting the Bill of Rights be interpreted unequally. There’s no way anyone can rationalize the idea that the other nine amendments in the Bill of Rights are timeless and limitless in their application and only one of them isn’t.

Yes, we can feel free to argue all we want about what a “well-regulated militia” constitutes, as well as what keeping and bearing arms means for the illegal gun-owning criminal versus the law-abiding citizen who likes to hunt with flintlocks and carries a concealed revolver for personal defense.

But the simple fact is that the Second Amendment shouldn’t be said not to apply to modern firearms just because the Founders hadn’t envisioned semi-automatic and automatic weapons.

If we can accept that the First Amendment can be interpreted to protect forms of speech not in existence in the 1790s and that the Fourth Amendment can be interpreted to protect the privacy of electronic records not in existence in the 1790s, then we should accept that the Second Amendment can be interpreted to protect the right to keep and bear firearms not in existence in the 1790s as well.