Shouting “Fire” in a Crowded Theater: A Blast from the Past

“You can’t shout ‘fire’ in a crowded theater.” (Actually, the original quote, which Supreme Court Justice Oliver Wendell Holmes, Jr. used to justify ruling that a ban on anti-draft protests was Constitutional, was falselyshouting “Fire” in a crowded theater.)

This argument gets raised again and again and again to claim that all rights are “limited” in some way.  Especially, when it comes to RKBA, people say “Of course we can restrict/ban X.  All rights are limited.  After all, you can’t shout fire in a crowded theater.”

However, the analogy completely fails.

A right is something that others are not permitted to prevent you from doing or having (not something that others are required to provide for you–but that’s another discourse for another day).  When you go into a theater, nobody takes away your ability to shout “fire.” Nobody gags you, disables your vocal cords, neutralizes the speech center of your brain or anything remotely like that.  Now, if you do exercise that right and use it in such a way as to cause harm, say by shouting “fire” with there not, in fact, being a fire, you may be held accountable for the harm caused by that exercise.  But nobody takes away your voice because “the right is limited.”

We already have, and always have had, equivalent “restrictions” on gun rights.  In Colonial days and for Fifty years after the ratification of the Constitution any free citizen could own and possess any weapon they wished.  Muskets?  Of course.  Rifles?  No problem.  Pistols?  No sweat.  Revolvers (invented as flintlock in 1814 and with percussion caps in 1836).  Legal.

Then Georgia passed a ban on knives of “offensive or defensive purpose”, and on the sale of pistols and requiring that all owned pistols be worn openly (banning concealed carry).  This occurred in 1837.  It took about eight years for that to be challenged in the Georgia Supreme Court where it was ruled unconstitutional.

And after that.  Other laws have been passed by Georgia and elsewhere, but still… Repeating rifles?  Legal.  Gatling guns?  Legal.  Breechloading artillery?  Legal.  The Maxim gun (early crew served automatic weapon)?  Legal.  Congreve and other bombardment rockets?  Legal.  Automatic rifles?  Legal.  Submachine guns?  Legal.  Handguns and rifles with detachable magazines (some of which went up to 50 rounds or more)?  Legal.  Only in the 20th century did that change.

But through all that, there was one constant.  The same “no shouting ‘fire’ in a crowded theater” “restriction was in place.  If you used the guns to cause harm you were criminally or civilly liable for that harm.

That’s what “you can’t shout fire in a crowded theater” really means.  You can’t use your right to “free speech” to directly, immediately, and provably cause harm without being responsible for the harm caused.  And that’s what the same thing means when it comes to guns.

But we don’t need gun control for that.  We already have that restriction.  Use a gun to cause harm and you are already legally responsible for that use.

So the parallel case already exists, and always has.  You already have the “no shouting fire in a crowded theater” restriction on “gun rights” and have had it since before there was a Constitution to guarantee any of the rights we hold.

Going beyond that, however, is no longer parallel and the analogy, thus, fails.

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