Clinton Urges Prior Restraint of Constitutional Liberties
by Ari Armstrong, April 1, 2000
Bill Clinton believes the Bill of Rights is subject to prior restraint. Bob Deans of Cox News Service reported March 30 that Clinton wants Congress to pass new laws restricting the ability of law-abiding citizens to keep and bear arms, a right guaranteed to "the people" in the Second Amendment. Clinton said at a press conference:
I think that it's just wrong to say that, because of the Second Amendment, and because there are a lot of people who like to hunt and sport-shoot, that prevention plays no role in this. A sensible society has a balance between prevention and punishment.... What if I said, you know, most people who drive are good, honest, responsible people, and we... ought to repeal the laws, the driver's license laws, and repeal the speed limits and the next time somebody does something wrong and has a 25-car pile-up, we'll just throw the book at 'em.
But Clinton missed an important distinction: the right to keep and bear arms is guaranteed by the Bill of Rights of the U.S. Constitution, whereas the privilege to drive is not.
Clinton also purposely misrepresented the significance of the Second Amendment, citing hunting and sport-shooting. However, the Founding Fathers explicitly named the most important reason for the right to keep and bear arms: A well regulated Militia is necessary to the security of a free State. As the Fifth Amendment makes clear, the militia is distinct from the "land and naval forces," the former consisting of the general populace. Social commentator Noah Webster explained one important implication of a citizens' militia: "The supreme power in America cannot enforce unjust laws by the sword, because the whole body of people are armed..."
Clinton's analogy to traffic laws simply doesn't hold. The government OWNS the roads. It's telling that Clinton has adopted as his standard a socialized industry. However, one can operate a vehicle on one's own property, and none of the traffic laws apply. The principle involved is simple: whatever party owns the property, sets the rules for the use of that property. There are limited systems of private roadways, and in those cases the private property owners, not the government, makes and enforces the traffic laws. Similarly, if the government didn't own the general road system, it would have no business setting traffic policy on those roads. (As an aside, Article 1, Section 8 of the Constitution empowers Congress only to "establish Post Offices and post Roads," which hardly describes the system of roads now funded by the federal government.)
There is a limited analogy to be made between gun laws and traffic laws, though: if a person is acting in an inherently dangerous way, that behavior can rightly be restricted. For instance, if a person is swerving while driving drunk, that behavior is inherently dangerous to others. Similarly, if a person is walking down a residential road randomly firing shots from a gun, that behavior is inherently dangerous and may be restricted. But a "right" does not include behavior which is an inherent violation of others' rights. The Second Amendment does not apply to bearing arms in a manner which directly threatens the rights of others.
But there can be no justification for the prior restraint of the (actual) rights of law-abiding citizens. Indeed, if the government sets the terms of a right, it isn't a right at all. For instance, consider a slight modification of Clinton's remarks:
I think that it's wrong to say that, because of the First Amendment, and because there are a lot of people who like to buy tabloids and send e-mails to their friends, that prevention plays no role in this.
The Columbine killers learned how to make bombs on the internet -- should the government require that every web page be registered with the government and that every internet user undergo a background check? Clearly the popular media is partly responsible for some copy-cat crimes involving school violence. Should all news outlets also register with the government? How about mandatory safety locks on computers? What about mandatory background checks for all reporters?
If we turn to the Fourth Amendment, should the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," hinge upon registering the articles of one's property with the government? Should every person who desires protection under the Fourth Amendment be subject to background checks, registration, and mandatory storage laws?
If Clinton threatened to register the media and impose prior restraints on the First Amendment, the American Civil Liberties Union would scream in protest. But that group only cares about some civil liberties, some of the time. The proper term for the selective advocacy of justice is hypocrisy. But the ACLU may learn soon enough that, as Martin Luther King, Jr. put it, "injustice anywhere is a threat to justice everywhere."
Bob Glass and Mark Call have made an interesting comparison between the First and Second Amendments. What if part of the First Amendment was worded in the following manner:
A well-stocked library system being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed.
Would some argue that such a statement guarantees only the right of the government to maintain libraries, just as some today claim that "the people" in the Second Amendment refers only to a right of the government to keep arms? Perhaps some dangerous books -- the Bible, the Satanic Bible, the Koran, the Anarchist Cookbook, Atlas Shrugged -- should be registered or even banned altogether. Perhaps there should be a "one book per month" law, for otherwise people might be able to buy dangerous books for their friends. Perhaps "high capacity" books should be forbidden, and government-sanctioned summaries substituted. Because "the pen is mightier than the sword," surely civil speech needs to be regulated more strictly than civil arms.
We know Clinton's memory is not always accurate, but surely he remembers the day he swore to uphold the U.S. Constitution. As in other circumstances, he apparently didn't mean what he said. Perhaps it's time to return to fundamentals, such as the belief: "We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights." We know how picky Bill Clinton is about the meaning of words, so I looked up "unalienable" in the Oxford. The term refers to that "which cannot be sold or passed away." Not by Bill Clinton, not by anyone.