Pratt Doesn’t Understand the Nature of Constitutional Rights

Larry Pratt is the executive director of the Gun Owners of America, which makes the NRA look like a bunch of weak-kneed comsymps. He also seems to be completely clueless about the nature of constitutional rights. Speaking of Justice Scalia’s majority opinion in Heller, which said that the Second Amendment does confer an individual right to bear arms but that this right is not unlimited, he said:

“He (Scalia) was not speaking from a constitutional perspective. The amendment does provide it’s own degree of scrutiny: It says, ‘shall not be infringed.’ And we know that at least one justice, Mr. Thomas, takes that point of view. This is not something where the government is supposed to be free to tell we the people, the government’s boss, how much — how far we can go with the Second Amendment. The Second Amendment is there to constrain the government.”

Well yes, the Second Amendment does say that the right to keep and bear arms “shall not be infringed.” But every other right stated in that document has similar language. 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 of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And yet Congress makes laws criminalizing perjury, libel and fraud, and forbidding the media from giving away troop movements, and setting rules on where and when people can peaceably assemble. Does that mean they’re violating the First Amendment by abridging those rights? Of course not. Because no reasonable person could possibly think that any right is entirely unlimited, even his hero Clarence Thomas.

So how do the courts go about determining which limitations are constitutional and which are not? In the case of the First Amendment and many other rights, they require that the government show that the law that was passed is the least restrictive means of achieving a compelling state interest. That interest might be public safety, the need to avoid giving away military secrets (thus the press can’t reveal troop movements) or to protect the rights of another person (hence, libel and slander laws).

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