THE BLOG
05/14/2013 11:11 am ET Updated Jul 14, 2013

Guns, Grenades and Graffiti

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Prisoners have a right to food. The menu options, however, are meager. The Big House is no steakhouse. It is not unusual, of course, for a right to be confined. The "freedom of speech" enshrined in the First Amendment does not cover every spoken word. As anyone who has plagiarized an obscenely slanderous incitement of imminent violence can attest, the wrong sentence might trigger a sentence in the slammer, with meals of mystery meat.

Yet as to the Second Amendment, a chorus of instigators has championed unfettered choice. The chair of the Shooters Committee on Political Education, a lobbying group in New York, recently characterized a bill that would ban assault weapons as "taking away my rights to own any type of firearm I choose." According to a U.S. Congressman from Virginia, "the plain language of this Amendment guarantees the right of law-abiding citizens to keep and bear arms of their choosing." Even the Democratic governor of Minnesota reads the Constitution as granting "complete permission for any law-abiding citizen to possess firearms, whichever ones he or she chooses."

That putative right to choose has no basis in the Second Amendment's text: "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." Even if one accepts the legitimacy of a provision whose social cost falls squarely on a race that was excluded from voting on its ratification, the right is to keep and bear arms, not to choose them. A citizen has no greater claim to a machete than a prisoner has to spaghetti.

The National Rifle Association's executive vice president, Wayne LaPierre, has criticized gun control measures as ignoring the "absolutes" of the Second Amendment and reducing the Constitution to "a blank slate for anyone's graffiti." Gun control advocates, however, are not the ones who have defaced the document. It was the Supreme Court that blanked out half of the amendment by announcing an individual right to bear arms, independent of any militia. That creative reading inspired creative writing by the gun brigade in spray-painting the phrase "any and all" onto the constitutional slate.

If the Second Amendment did provide a right to "bear any and all Arms," we would face troublesome questions of taxonomy. Do "Arms" include AR-15s? ICBMs? How about grenades, like the improvised explosive devices the Boston bombing suspects allegedly threw at police officers?

But sandblasting the Constitution to restore its actual text reveals that it lacks the absolutes urged by the graffiti artists. There is no right to bear any particular arm. As long as people are permitted some weapons -- say, simple pistols, or maybe even stun guns -- their right to "bear Arms" is thus intact. So without infringing on the Second Amendment, the government can outlaw semiautomatics and missiles and grenades and countless other health hazards. Whether gum in prison or guns in public, Bazookas can be banned.

That unabsolutism may be unbearable to gun apologists, but it is hardly unique to the Second Amendment. The First Amendment protects, in addition to the freedom of (much) speech, "the right of the people peaceably to assemble." But that right does not cover sleep-in protests at public parks--or, for that matter, at your neighbor's house. What about the clause safeguarding the "free exercise" of "religion"? As the Supreme Court has recognized, a religion engaged in "human sacrifices," or in any other practice "against peace and good order," is not immune. The right to free exercise extends to religion per se, but not to any and all religions.

The Court has commented just as judiciously about guns. Even when erasing the militia clause in favor of an individual right to bear arms, it struck a measured tone, acknowledging that the Second Amendment historically has not conferred "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose" and noting with approval the "tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" Though gun industry mouthpieces have the right under the First Amendment to spew anti-American graffiti on the Second, they should bear in mind that when it comes to arms, the Court is not pro-choice.

Death-row inmates, by tradition, may choose their last meals. That freedom -- even when, as is often true in France, it allows for alcohol -- does not disturb peace and good order. But allowing citizens the freedom to choose their weapons, as the United States gun lobby demands, can lead to human sacrifices. Soothing one's soul with a final-hour cocktail is one thing; making it a Molotov is another. Now is the time to expose the constitutional graffitists as con artists, reject their rhetoric of absolutism, and bring reasonable gun control to life.

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