The New York Times is dismayed -- downtirght shocked, I tell you! -- that a gun magazine would be so absolutist about gun rights and so uniformly hostile to gun control. Then it trots out the familiar leftist argument that "all constitutional rights are regulated," managing to count a lot of trees while missing the forest. James Taranto reacts:
Every sentence of this is problematic. In the first place, his claim that all constitutional rights are regulated is easily falsifiable. Try to come up with an example of a law or regulation that limits the Third Amendment right against the peacetime quartering of soldiers in private homes without the owner's consent.
More important, the examples he gives of "regulation" of First Amendment rights are not that at all. They are, instead, generally applicable criminal laws. The "freedom of religion" example illustrates the point most clearly. A murderer who raised a free-exercise defense would be laughed out of court. But a Second Amendment defense would be equally frivolous. No gun-rights absolutist claims that the right to keep and bear arms entails the right to use them to murder others in cold blood.
The denial of gun rights to felons and mental patients, by contrast, can be described as a regulation, and the Supreme Court more or less affirmed its constitutionality in District of Columbia v. Heller (2008). But imagine an equivalent rule applied to First Amendment rights. A blanket ban on speech, worship or public assembly by felons or mental patients would be plainly unconstitutional. Contrary to Metcalf, the Second Amendment right is unique, not typical, in the degree to which it is subject to regulation.
As someone who has made a living by the rights conferred by the First Amendment, I've always been amused (when not ittirtated) by journalists who are absolutist, give-no-quarter advocates for a free press but thing it's perfectly OK to limit the Second Amendment. Something is either a constitutional right, or it isn't. Why is it OK to deny Second Amendment rights to the mentally ill but not First Amendment rights? Because guns are dangerous? Well, so is free speech.
I appreciate Taranto's give-no-ground arguments. I've used them myself, primarily about tax and budget questions. If the other side is never going to compromise -- and generally it doesn't -- then why should I? If I concede any ground at all, they've won.
