Posts Tagged ‘Scalia’

Ranking the Bill of Rights, Number 1: The First Amendment

It’s been nearly eight months since we started our journey by placing the Second Amendment in its rightful place: last. The problems that plagued the Second Amendment—lack of clarity and dubious public policy justifications—are perhaps the greatest strengths of our first-place finisher,* the Fightin’ First! I present to you the First Amendment:

*Of course, its clarity and phenomenal public policy justifications are its strengths.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment is wide-reaching: It protects freedom of speech and of the press, freedom of assembly, and the right to petition. It also has the Establishment and Free Exercise clauses, which manage the relationship between religion and state. All these components have contributed to the First’s first-place finish, but what propels the First Amendment to the top of these rankings is its first and deservedly foremost freedoms of speech and press.

Freedom of speech and the press

The U.S. is unique among most countries in its seemingly unqualified* protection of freedom of speech and the press.** The European Convention on Human Rights provides for Freedom of Speech except when restrictions are necessary “for the protection of health or morals,” “for the protection of the reputation and rights of others,” and for other concerns like national security. In France, free speech may be limited “[if it is necessary] to respond to the abuse of this liberty, in the cases determined by the law.” Accordingly, in France, publicly denying the Holocaust and inciting racial hatred are not protected by free speech. In Germany, free speech may be limited “to protect personal honor” or “young persons.” England abides by the European Convention but has additional limitations, including the criminalization of the incitement of racial and religious hatred and ridiculously strict defamation laws. In India, freedom of speech may be limited “to protect the integrity of India” and for “decency and morality.” Some countries, like China, claim to protect freedom of speech but ignore their constitutions so blatantly that the words have little meaning.

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Ranking the Bill of Rights, Number 10: The Second Amendment

Luckily, the Bill of Rights is more limited than history. So, rather than ranking 173 historical happenings, I can get away with ranking a much more manageable ten amendments, which constitute the United States’ Bill of Rights.

Coming in last place is the Second Amendment which reads: “A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed.”

Seriously, Framers? That’s the best you can give us? The Second Amendment is—by far—the most poorly worded and punctuated amendment. The opening noun clause “a well regulated Militia” is neither the subject nor the object of the sentence. The opening phrase isn’t even necessarily part of the substance of the amendment, but rather a justification for the amendment. But, if the justification no longer holds—if a well regulated militia is not so necessary for a free state—does the declarative clause lose its meaning? Antonin Scalia maintained that it did not in the Heller case, claiming that the first clause is a prefatory clause, a non-exclusive reason for having the right to keep and bear arms. Moreover, there is significant ambiguity as to what constitutes “Arms” and at what point a right (which is arguably collective despite Scalia’s ruling) is infringed. And, what the heck is that comma after “Arms” doing there?

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