Gun Rights, Two Amendments, and a Lot of Funerals

The obituary of Robert H. Bork in The New York Times (Dec. 20 2012) notes that, “In a 1971 article in The Indiana Law Journal, [Bork] argued that the First Amendment’s protection of free speech had been wildly extrapolated beyond the intent of the Constitution’s framers. In a starkly narrow interpretation, he said free speech existed to perpetuate the process of self-government; therefore, he wrote, only explicitly political speech about governing was protected.” That is indeed a tortured reading. Explicitly political speech about governing could be construed as narrowly as speech about whether the Senate should change the filibuster rule. To Hell with freedom of speech about everything else. But there is a striking comparison between Bork’s First Amendment and the Second Amendment as it relates to the recently re-ignited gun-control debate. The Second Amendment has indeed been “wildly extrapolated” by the gun lobby beyond its original intent. The crucial difference is this: the limited original intent of the Second Amendment is clear, and is thrown into relief by the massive social and technological changes since it was written, whereas the narrow reading of the First Amendment is almost certainly not the intended one, nor is that amendment so antiquated. 

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