Don’t believe the political hype! Constitutional rights have limits
28th June 2021 · 0 Comments
Rudy Giuliani, his attorneys and Donald Trump assert that the insurrectionists and members of Trump’s militia were exercising their First Amendment right to assemble and freely express themselves on January 6, 2021.
All U.S. citizens have the same First Amendment rights as codified in the Bill of Rights – which is the first 10 Amendments – of the U.S. Constitution:
The First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Constitutional rights are not unlimited, nor does the Constitution lend itself to wild interpretations by those who would use it to justify excessive and criminal behavior.
Trump and his supporters’ claims that his followers were only exercising their constitutional rights were outright lies.
In Brandenburg v. Ohio, the U.S. Supreme Court defined limits on free speech in 1969 when it ruled that the government cannot punish inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Responding to a question about First Amendment rights and the January 6 insurrection, free speech expert Timothy Zick explained:
“The First Amendment does not protect violent activity. Those engaged in riotous conduct – breaking windows, vandalizing the Capitol and its contents, assaulting officers, using bear spray, etc. – can’t invoke the First Amendment as a defense to these criminal acts. The First Amendment provides ample breathing space for sharp and caustic political rhetoric. It even protects advocacy of insurrection in the abstract.
“However, it does not protect speech that poses an imminent danger of physical injury to individuals or groups or that advocates the commission of specific illegal activities. Under the First Amendment, speakers do not have a right to communicate severe threats of bodily injury or death to others, incite imminent lawless action where that action is likely to occur, or conspire to commit criminal acts.”
Trump’s suggestion to “fight like hell,” Guiliani’s call for “trial by combat,” and Mo Brooks’ assertion that protesters take names and kick ass incited the mob and led to imminent lawless action.
Trump’s militia didn’t have a right to assault the Capitol under the pretext of the right to assemble or the freedom of expression. Undoubtedly, the privileges afforded by the First Amendment didn’t include injuring 140 police officers, causing the deaths of five people, and erecting a scaffold from which to hang then-Vice President Mike Pence.
One reporter who was there on January 6 documented the shouts of the Trump mob: “Shoot the politicians!” somebody yelled. “Fight for Trump!” Another person was heard saying, “While we’re here, we might as well set up a government.” But, of course, the First Amendment doesn’t sanction threats of violence or insurrection, nor does it protect all speech.
Here are examples of non-protected speech: Obscenity; fighting words; defamation (including libel and slander); child pornography; perjury; blackmail; incitement to imminent lawless action; true threats; and solicitations to commit crimes.
U.S. Representative Bennie Thompson took issue with words spoken by Trump and Guiliani in his February 2021 lawsuit, in which he accused the politicians and militia groups, the Proud Boys and Oath Keepers, of conspiring to obstruct Congress from certifying the election Trump lost.
“Defendant Trump actively and enthusiastically supported armed protesters who used threats and, at times, violence in the pursuit of their political and social agendas.”
The Second Amendment is another constitutional right that has limits, although gun advocates view it as limitless.
The Second Amendment states “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.”
Common sense tells us that the Second Amendment allows states to protect their territory.
Yet, in 2008, the U.S. Supreme Court’s Republican majority ruled that the Second Amendment also gave individuals the right to own guns, not just militias.
In District of Columbia v. Heller, the U.S. Supreme Court explained, “The Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Federal laws prevent specific individuals from owning weapons, including felons, people under domestic violence restraining orders, mentally ill persons, undocumented immigrants, some visa holders, drug users and dishonorably discharged military personnel.
Under federal law, it’s illegal for civilians to have fully automatic weapons (referred to as machine guns in 18 U.S.C. § 922(l)). In March 2019, the federal government outlawed “bump stock” devices (which attach to semiautomatic weapons to produce automatic firing with one pull of the trigger) by defining them as machine guns for purposes of federal law.
Many Republican state lawmakers are against sensible gun regulations. So instead, they pass laws that subvert federal gun laws.
As a result, 280 mass murders, including two in Louisiana, have occurred halfway through 2021. Mass murder and senseless gun violence are the result of unfettered gun ownership.
Texas legislators, for example, just passed a law allowing people to purchase guns and openly carry them without a permit, registration or background checks.
Perfect. Just what we need, more people running around without licenses to carry firearms. Texas’ law goes into effect on September 1.
Still, there are limits to every constitutional right, and even the powers accorded to the states in the 10th Amendment, states’ rights.
Article VI, Paragraph 2 of the U.S. Constitution is called the Supremacy Clause. It establishes that the federal constitution and federal law generally takes precedence over state laws and even state constitutions.
The Supremacy Clause trumps States Rights. Still, the only way to combat dangerous state laws and enforce the Supremacy Clause is to take the offending state(s) to court.
We’ll wait.
This article originally published in the June 28, 2021 print edition of The Louisiana Weekly newspaper.
