Monday, February 4, 2013

Why Is The Second Amendment More Important Than The First?

The following is an op-ed submitted to local blog Lost Coast Outpost. It is reprinted here with the author's permission. 

Sheriff Downey, Where Was Your Concern for the Constitution on the Courthouse Steps?
Jeffrey Schwartz / Yesterday @ 8:56 a.m. /  Op-Ed

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These days, we read and hear on TV, radio and Internet blogs from all kinds of people who are passionately writing and speaking in defense of their constitutional rights. As a lawyer and director of a non-profit devoted to the redress of constitutional violations, I wish this new found interest wasn’t limited to just one section of the Constitution—the Second Amendment right to bear arms.

These same people had a different take on our constitutional rights not too long ago when hundreds of thousands of people gathered around the world and in Humboldt County as part of the Occupy Movement. Back then this was their take on constitutional rights: “I believe in free speech, but….” They ended that sentence with something like this: The right to free speech is not absolute and there should be restrictions when it infringes on the rights of others to walk by or forces them to look at signs they disagreed with or see and smell unwashed people in dirty clothes.

The same people talking now about an absolute Second Amendment right to bear arms complained then of how uncomfortable it was to walk past Occupy protesters to get into the Humboldt County Courthouse. Or how inconvenient it was to walk 100 yards to enter from the other side of the courthouse to avoid the protesters. The First Amendment right to speech and assembly, they said, must be weighed against the rights of others: mostly the right not to confront ickiness and inconvenience.

Now most of these same people who were ready to limit the First Amendment speech a year ago, are infused with invigorated energy at a level unseen in constitutional advocacy to ensure that not an inkling, not an iota of their Second Amendment right be curtailed at any cost.

Where is the, “I respect the right to bear arms, but…” preface to their continued fight to protect constitutional gun rights? Regulating the right to free speech if it means walking around the corner to enter the courthouse is okay to them, but regulating the use of semi-automatic mega rifles to keep them out of the hands of maniacs, no way.

A stark example of this is the recent opinion of Humboldt County Sheriff Mike Downey. In the Times-Standard recently he stated his support of gun rights. (“Downey says he has constitutional concerns about gun control.” T-S, 1/27/13.) This same Mike Downey last year led the “I-believe-in-free speech-but…” crowd as he cleared the courthouse steps and put up a fence and restricted signs. You won’t find any “buts” in his arguments and actions this time around. (Disclosure: I like Mike Downey. He is kind, caring and compassionate.)

Mike Downey and other Humboldt County law enforcement officers have no qualms fudging our rights to privacy when it comes to searching the home of a medical marijuana patient. But ask a gun show vendor to check to see if a crazy maniac should own a gun, no way. That is an infringement of our Second Amendment right, they say.

Sheriff Downey, where is the “I believe in the right to bear arms but…” scenario when it comes to the Second Amendment? What makes the Second Amendment so much more precious and unregulated than the right to free speech or privacy?

We all agree that you can’t yell “Fire!” in a crowded movie theater. There are reasonable limits to our First Amendment rights. Why can’t we agree that you can’t own a semi-automatic assault rifle loaded with a 30-round magazine? Without any limits we make it easy for some crazy person every once in a while to fire one in a crowded movie theater. And that’s more than icky or inconvenient. That’s insane.

Jeffrey Schwartz is a criminal defense attorney and director of the Humboldt Center for Constitutional Rights in Arcata.


  1. I support both. I think the Occupiers had a right to get their message out, and they did it nationwide ad nauseum. Good for them. But believe me, nobody has the right, under the Constitution, to tell me what "style" of weapon I decide to own simply because some do-whacks and do-gooders would like to intend otherwise. Nor am I excited about the NRA and nutjobs claiming that "a good guy with a gun" would save me and my family in a bad situation in Denny's. Nope. Don't want the help, and don't want anyone telling me that 7 rounds in a clip, or 8, or 12 or whatever, is illegal, nor that my collection of Remington Woodmasters, formerly FBI issue Browning patent humpback autoloader weapons from the 1930's (LEO used them with banana clips) can no longer be used for deer hunting. I guess I'll be illegal, like a few million other U.S. citizens. Up yours.

  2. "Henchman Of Justice" says,

    HOJ supports ya Anonymous.

    As to the importance of one right over another, it is commonly believed that without the first amendment, the 2nd amendment would be meaningless; and, without the second amendment, the first amendment would be meaningless. Let us face the music that maybe, just maybe, our forefathers involved in writing the constitution understood tyranny better than today's people because back then, society was "closer on a personal level" to tyranny, whereas today's society is heading back to being closer to tyranny. Fill in the generational gaps and all these years that have gone by, and maybe it is rational to believe that today's private sector society is naive (less the government officials who stay on the down low with much of what they really understand and comprehend).

    About one of the few things our forefathers were wrong was that all humans are humans, and that human slavery is wrong, that segregation and culture bashing is wrong and that, all in all, genders should not be separated politically. Obviously, there were great thinkers, but also very selfish people looking for individual gains.

    Part of healing is for the abuser to acknowledge their abuses. America is still healing and shall for a very long time, even after America goes through worse times that do lay ahead on the horizon. It is inevitable due to the debt this country has amassed. Unfortunately, many people of all makes and models, both genders, etc. will suffer because of the political and economic greeds. We, as a country, still have much to "re-learn". - HOJ

  3. My thoughts on this letter by Mr. Schwartz is that gun owners allowed themselves to be restricted when they themselves took liberties from the Occupy protesters as the Sheriff did here in Humboldt. If the state or county can demand that protests take place in a certain manner or during specific times, or with or without chairs or any number of restrictions placed on these free speech advocates then all constitutional rights are subject to restrictions and interpretations.

    The Bush administration was successful in curbing free speech rights when they created so called free speech zones. I thought the entire country was a free speech zone but that was taken out of the constitution by Bush and the congress that enabled him to do so.

    I admit I was pissed off at the Tea Party for not standing with OWS for the first amendment. I think it is to the advantage of those in power if the rest of us are divided against each other. I'm not saying that since we have lost free speech that we should lose our right to bear arms. I'm just saying that those that stand to lose their second amendment rights should have spoken up when hundreds of thousands of us were in the streets protesting against that 1 percent that keeps us divided.

    The gun folks have shown up to the party after the cops have cleared it out and sent everyone home. Too bad.

  4. It cannot be denied that the First Amendment says "shall MAKE NO LAW abridging" and the 2nd begins, "A WELL REGULATED regulated militia being necessary to the security of a free state."

    I can understand some might be concerned that the regulations will go too far, but I don't understand why they are unconcerned with the law the County passed that abridged our rights at the Courthouse. I understand the local Tea Party attended at least one of the County Administrative Officer's meetings and spoke up against restrictions and the permit idea then being floated about.

    It is not too late, a draft replacement code to protect First Amendment activities is beginning to circulate, the Board of Supes need to be contacted and encouraged to do the right thing.

    the draft is at--


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