02/14/2013 10:55 am ET Updated Apr 16, 2013

Two-Faced Freedom

I am about to talk about guns again. I don't much want to, for a number of reasons. For one thing, guns have never been, and are not now, the principal focus of my professional efforts. For another, when I say what I have to say about guns, I wind up standing in an arcade of rhetorical rifle fire. I can take it, but I prefer civility, and kinder, gentler discourse when I can get it. Oh, well.

But before talking about guns, I want to talk about talking. Because however revered the Second Amendment may be, it is not more so than the First. I can say what I have to say about the Second Amendment because of the First Amendment. So leaving guns out of it for the moment, I assert my love and reverence for the First Amendment.

But there is a funny loophole in that First Amendment I love. It doesn't specify, at least not explicitly, what I have the freedom not to say. It says my free speech cannot be unreasonably abridged; it is silent on the topic of it being forcibly expanded. One might argue that issue is addressed in yet another amendment -- the Fifth -- but that one really is just about self-incrimination.

If the Fifth did fully redress the loophole in the First, it would be a precautionary tale: Sometimes amendments need emendation for full, practical clarity. I don't think we should ignore that unsettling notion, but it's not most salient at the moment.

Because I don't think the Fifth Amendment does redress the real loophole in the First. The First Amendment says I am free to speak, but does not speak to the issue of me being compelled to say something I don't want to say. The First Amendment does not explicitly say: I am free from coercive force compelling me to say things I don't believe.

But I don't think the First Amendment needs to say all that, because it is implied. Because any sensible interpretation of the First Amendment must allow for some degree of freedom from speaking into the bargain. And even if not, we have other rights and other laws that protect us from such coercive force. I revere my right to speak freely -- I am exercising it now -- but I am just as grateful for the sensible context in which it resides. The First Amendment does not say that the majority of us are free from a coercive minority indulging their Second Amendment rights excessively, pointing guns at us, and telling us what to say. But we certainly are! Which brings us back to guns.

For argument's sake at least, we may suppose I agree it's important that we all have the right to bear arms. We may agree for argument's sake that the exercise of that right is a defense against tyranny. But if we agree accordingly, we must also agree that the Second Amendment is about defending against tyranny, not just a lark. We must agree that the Second Amendment was not just because the Founding Fathers felt it constitutionally important for everyone to have access to a trigger-pulling good time. If the Second Amendment matters, it's because defense against tyranny matters. And, of course, it does.

But if my right to say freely the things I wanted came bound up with vulnerability to coercion forcing me to say things I did not, I would, in fact, be subject to tyranny. When force is misused by the one or few to deny the will of the majority, a representative democracy has run amok. Tyranny has taken hold.

A nationally representative poll -- and only the most recent of many -- indicates that an overwhelming majority of us favor universal background checks before gun purchases. Smaller majorities, but still majorities, favor the stricter control of high-capacity magazines and assault-style semi-automatic weapons.

I am, of course, among them. I want the right to avoid saying things I don't want to say, as much as I want the right to say the things I do. Similarly, I want the right for my children to attend a school immune to the prospect of trespass by a mentally unhinged sociopath with a weapon of mass destruction purchased in a no-questions-asked parking lot transaction. I want that right.

And so does the overwhelming majority of my fellow parents, grandparents, aunts, uncles, and otherwise unclassified Americans.

We are told by the NRA and other all-guns-for-all proponents that background checks can't work. But if the NRA leadership have decided that they know better than the vast majority of us what will work and is in our best interest, and thereby proceed to do all they can to subordinate our will to theirs for our own good, the question implied is self-evident: Who died and made them king? For such presumption is the beating heart of despotism.

The founders did not write the Second Amendment for a lark. They were addressing such profound issues as defense against tyranny; all of the most ardent defenders of the Second Amendment invoke that very argument. And we may infer that the founders prudently avoided perpetrating tyranny while defending against it, and resisted any inclination to say what arms we would all be obligated to tolerate. They allowed for the right to bear arms to be limited to the arms the majority want among us. The founders presumably knew they did not need to exclude nuclear weapons, having some faith in the sense of the people.

The founders did not obligate us to tolerate arms in the hands of lunatics, arms designed for maximal carnage. But the NRA does.

The New York Times reported on a dour face among the throng at the State of the Union address this week. Ted Nugent was in attendance at the invitation of a representative from Texas.

Known as an ardent proponent of gun rights, Mr. Nugent was there, ostensibly, to lend a face to our shared right to bear arms. There in defense of our common right, his scowling face was meant to represent the veneration of freedom. His face was there to wear a disapproving frown, as the president spoke about gun control.

But his was the face of a minority that stands between the majority and the exercise of its will. His was the face of a small group that presumes to know better than we, the people, what is in our best interest. His was the face of a group that wants to impose its will on us all.

His, therefore, in a chamber devoted to the practice of representative government in which the will of the majority is supposed to prevail -- was the face of tyranny.


Dr. David L. Katz;