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Schumerís False Fire - His analogy is a dreadful one.
National Review Online ^ | January 31, 2013 | Charles C. W. Cooke

Posted on 01/31/2013 12:22:30 PM PST by neverdem

With a dreary predictability, Senator Chuck Schumer (D., N.Y.) shared with yesterday’s Senate hearing his “fire in a theater” argument for gun control. Schumer, as anyone who follows his exploits will be aware, is fond of this line. Adumbrating his opposition to the allegedly pernicious influence of Citizens United, the senator made the underlying point explicit: “I believe there ought to be limits because the First Amendment is not absolute. No amendment is absolute.” In an op-ed on December 23 of last year, he moved his attentions a little farther down the Bill of Rights: “While the First Amendment protects freedom of speech, no one has a right to falsely shout ‘Fire!’ in a crowded theater. . . . Likewise, the Second Amendment’s right to bear arms also comes with limits.” Thus, Schumer told the Senate hearing, we can ban “assault weapons” with little trouble.

This fire-in-a-theater jazz is a favorite of the less historically literate among America’s false-compromisers, most of whom know neither that the phrase was a (defective) analogy and not a legal doctrine, nor that the case from which it comes was subsequently overturned with some prejudice. Also generally unknown, but crucial, is what Oliver Wendell Holmes and his colleagues were (unanimously) doing in that case. Nine to nothing, they were upholding the Espionage Act of 1917, that baleful resurrection of the Alien and Sedition Acts that so stained the liberty of the republic during its brief flirtation with fascism. In doing so, Holmes and Co. were endorsing the half-year prison sentence that had been inflicted upon the plaintiff, Russian exile and secretary of the Socialist party Charles Schenk, for having the temerity to oppose in public his new country’s involvement in World War I.

It is a detestable irony that in exchange for handing out anti-draft leaflets reading, “Do not submit to intimidation” and “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain,” Schenk was not only put in prison but used as a symbol to signal the court’s pusillanimity in the face of the Wilson presidency: a majority upholding a majority against the little guy. And on what grounds? Because the United States, whose nearest border lay more than 3,000 miles away from the horrors of the Western Front, was ostensibly in “clear and present danger,” and Schenk’s leaflets — not even written in English — were such a mortal menace to the war effort that they had to be repressed.

“Because the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic,” the Court reasoned, the Wilson administration could imprison anti-war types whose words damaged recruiting, or even just “morale.” If that sounds silly, rest assured that it was. But it was worryingly common to the era. The Holmes Court held pretty much the same thing in a trio of cases over the next couple of years, sending Eugene Debs to prison for anti-war socialism, incarcerating a newspaperman named Jacob Frohwerk for criticizing the government in print, and shutting down German newspapers in Philadelphia for their intentions to “chill and check the ardency of patriotism.” A rotten principle indeed. That anybody should quote these incidents, a nadir of American democracy, in defense of his position is grim. That a U. S. senator should do so is unconscionable.

What it has to do with firearms is anybody’s guess; perhaps Schumer’s conception of equal protection is that if one amendment can be violated, they all can. In any case, it is perhaps fitting that he should draw on Holmes’s witless aphorism to help make his case. If you thought it was absurd to draw a line between a handful of Yiddish leaflets and the survival of the American republic, you’ll doubtless like Schumer’s link between assault weapons and a “clear and present danger” to the republic. Put simply, they’re not: FBI statistics from 2010 show that rifles — not “assault” rifles, just rifles — are responsible for fewer deaths in the U.S. than are handguns, shotguns, knives, and “hands, fists, and feet.” In 2010, a total of 358 people were killed with rifles, which means that, even if American crime were geographically uniform, you’d have only around a one in a million chance of being one of them in any given year. This is about the same chance as being struck by lightning or of President Obama’s going skeet shooting at Camp David.

Charles Schenk and his ilk, Christopher Hitchens observed, “were the ones shouting fire when there really was a fire in a very crowded theater indeed.” Hitchens snarled: “[W]ho’s going to decide” what is acceptable to say and what is not? Indeed, who is going to decide? The arbitrary power that laws such as the Espionage Act give to the state is precisely what those who call out “assault weapons” bans and intrusive background checks seek to avoid, an upside-down presumption that rights require demonstrations of need or are contingent upon circumstance. Suffice it to say that to hear Chuck Schumer favorably referencing the most famous censorship case in the history of the country, in which the Supreme Court ruled baldly that state power was more important than the Bill of Rights, is no comfort at all.

— Charles C. W. Cooke is an editorial associate at National Review.



TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections; US: District of Columbia; US: New York
KEYWORDS: banglist; democrats; govtabuse; guncontrol; schumer; secondamendment; tryanny; youwillnotdisarmus
This fire-in-a-theater jazz is a favorite of the less historically literate among America’s false-compromisers, most of whom know neither that the phrase was a (defective) analogy and not a legal doctrine, nor that the case from which it comes was subsequently overturned with some prejudice.

What was that case? Does anyone know?

1 posted on 01/31/2013 12:22:40 PM PST by neverdem
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To: neverdem

If a madman is firing into a crowded theater; is it better to have a weapon to defend yourself, or to just cry afterward?


2 posted on 01/31/2013 12:33:55 PM PST by USFRIENDINVICTORIA
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To: neverdem

The difference between shouting fire in a crowded theater and assault weapons is that they only punish the person who shouted, not everyone else.


3 posted on 01/31/2013 12:36:00 PM PST by Brooklyn Attitude (Obama being re-elected is the political equivalent of OJ being found not guilty.)
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To: neverdem

you can yell ‘fire’ wherever and whenever you want if you’re nuts or an a-hole.

never seen a law that could stop it, just ones that could punish it.


4 posted on 01/31/2013 12:48:14 PM PST by TurboZamboni (Looting the future to bribe the present)
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To: neverdem

Hahaha, causing a panic in a crowded location is now equal to owning a firearm.


5 posted on 01/31/2013 12:49:03 PM PST by andyk (I have sworn...eternal hostility against every form of tyranny over the mind of man.)
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To: neverdem

Lets see Chuckie. Do you punish the person who yells fire or do we tape the mouths of everyone entering the theater.

Think about it.


6 posted on 01/31/2013 12:54:07 PM PST by joshua c (Please dont feed the liberals)
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To: neverdem
FIne. If it's against the law to shout fire in a movie theater, then make it illegal to fire a gun in a movie theater. Analogy resolved.

I will actually promote this new gun law, Chucky. I'm sure that most people would support a law banning the shooting of guns in a crowded theater. What say you, Chuckster?

7 posted on 01/31/2013 12:54:31 PM PST by Sirius Lee (All that is required for evil to advance is for government to do "something")
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To: neverdem
That was a very educational (to me, anyway) little opinion piece. Some history I was not aware of.

He should have specifically named the case though.

8 posted on 01/31/2013 12:56:31 PM PST by dead (I've got my eye out for Mullah Omar.)
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To: andyk

Ted Cruz uses pistol grip to rebut call for assault weapon ban

http://www.freerepublic.com/focus/f-news/2983924/posts

Feinstein and Schumer saw the picture Cruz brought and trampled staffers while they were running in terror.


9 posted on 01/31/2013 12:57:33 PM PST by TurboZamboni (Looting the future to bribe the present)
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To: dead

Schenck v. United States, 249 U.S. 47, 49-51 (1917)


10 posted on 01/31/2013 1:01:17 PM PST by gusty
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To: neverdem
“While the First Amendment protects freedom of speech, no one has a right to falsely shout ‘Fire!’ in a crowded theater. . . . Likewise, the Second Amendment’s right to bear arms also comes with limits.” Thus, Schumer told the Senate hearing, we can ban “assault weapons” with little trouble."

Too bad chucky but NO YOU CAN NOT.



If the Founding Fathers meant for there to be laws restricting an American Citizen of their right to freely and without restraint posses arms they would have clearly written it into the text of the Amendment just like they did in these...

Amendment I
Congress shall make no law

Amendment III
but in a manner to be prescribed by law.

Amendment XII
no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny

And these...

AMENDMENT XIII
AMENDMENT XIV
AMENDMENT XV
AMENDMENT XVI
AMENDMENT XVIII
AMENDMENT XIX
AMENDMENT XXIII
AMENDMENT XXVI


The Second Amendment is absolutely clear here.

It is:

"shall not be infringed"

Not "according to the rules of the common law"
Not "but in a manner to be prescribed by law"
Not "but upon probable cause, supported by Oath or affirmation"
Not "without due process of law"
Not "Congress shall have power to enforce this"
Not "The Congress shall have the power to enforce, by appropriate legislation"
Not "unless they shall by law"
Not "Congress may by law"
Not "and shall not prevent
Not "No law"


Yeah, the Founding Fathers had every single opportunity for YEARS to put such a stipulation in the Second Amendment.

What do we see there?

Do we see the stipulations that are in many of the other Amendments?

No.

The "Bill of Rights" took seven months to write. This was in addition to the eleven years for the Constitution. The Constitutional Convention was 116 days long. The Bill of Rights was not ratified until 1791.

There was plenty of time to create stipulations for the Second Amendment that would allow certain encroachments based upon existing or future law or laws. Such stipulations exist throughout the Constitution and it's Amendments, including the first ten.

The Second Amendment contains only one stipulation. "Shall not be infringed."

My conclusion is they damn well meant exactly not in the slightest scintilla. They were experts in what happens when such concessions are allowed. It is the absolute definition of "slippery slope."

Such concessions are the exact cause of being tangled in the 20,000 infringements spider web of laws, rules, ordinances and policies of today.

.br

11 posted on 01/31/2013 1:02:16 PM PST by TLI ( ITINERIS IMPENDEO VALHALLA)
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To: neverdem

Banning certain rifles is analogous to cutting out the tongues of theater-goes in advance.

The analogy to “shouting fire” is the criminal misuse of guns, which is already illegal.


12 posted on 01/31/2013 1:11:27 PM PST by Atlas Sneezed (Hold My Beer and Watch This!)
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To: gusty

Gracias!


13 posted on 01/31/2013 1:12:42 PM PST by dead (I've got my eye out for Mullah Omar.)
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To: neverdem

Chuck U, Shumer!


14 posted on 01/31/2013 1:13:38 PM PST by Alas Babylon!
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To: neverdem
Then REPRESENTATIVE Schumer was a great cheerleader for ATF after the Waco disaster.


15 posted on 01/31/2013 1:45:25 PM PST by Fido969
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To: joshua c
Lets see Chuckie. Do you punish the person who yells fire or do we tape the mouths of everyone entering the theater.

If Schmuckey answered that question honestly you'd have tape on your mouth right now. Or your keyboard as the case may be.

16 posted on 01/31/2013 1:53:08 PM PST by TigersEye (The irresponsible should not be leading the responsible.)
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To: TLI

Excellent post. I’m going to copy it and pass that on to others.

Thanks


17 posted on 01/31/2013 2:00:59 PM PST by paint_your_wagon
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To: TurboZamboni
"never seen a law that could stop it, just ones that could punish it."

Sort of agree. As I wrote in another thread:

This spurious argument has always irritated me -- it is just plain stupid.

There is not prior restraint in the 1st -- you may yell "Fire!" in a crowded theater.

You are not, however, immune from the consequences if there is not a fire.

18 posted on 01/31/2013 2:10:27 PM PST by Peet (TurboTax: "So simple even a Secretary of the Treasury can use it!")
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To: gusty; dead; Beelzebubba
gusty; thanks for the correct spelling of Schenck v. United States, which SCOTUS reversed in Brandenburg v. Ohio. I had that source, http://www.law.cornell.edu/, on my old comuter. Thanks for prompting me to retrieve it.
19 posted on 01/31/2013 2:10:48 PM PST by neverdem ( Xin loi min oi)
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To: TLI

Thank you!


20 posted on 01/31/2013 2:13:37 PM PST by neverdem ( Xin loi min oi)
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To: paint_your_wagon; neverdem

You are both welcome.

copy away...

.


21 posted on 01/31/2013 2:36:24 PM PST by TLI ( ITINERIS IMPENDEO VALHALLA)
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To: neverdem
Fine. Let's cast gun control as a "fire in a crowded theater" argument. That argument was used to establish the doctrine of "clear and present danger," in which free speech could be restricted if it could be clearly proven that said speech presented an immediate danger to life, limb, or property. Applied to firearms, that means that Second Amendment rights can be restricted if they present a "clear and present danger" to life, limb, or property. The mere existence of a firearm is not a threat, and it can as easily be proven that they DEFEND life, limb, and property; their ABSENCE constitutes a threat.

So the libs have defeated their own argument. Which is not hard when you have no logical basis to begin with ...

22 posted on 01/31/2013 3:12:44 PM PST by IronJack (=)
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To: neverdem
Gun facts - yelling fire in a crowded theater

You CAN Yell "Fire!" in a Crowded Theater

23 posted on 01/31/2013 4:00:30 PM PST by EdReform (Oath Keepers - Guardians of the Republic - Honor your oath - Join us: www.oathkeepers.org)
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To: TLI
Good post, clear enough even for Schmucky Chucky, Clinton the Liar, and The Smartest Woman Lawyer in America ("what does it MATTER?") to understand you.

You'd have to cock a thousand guns simultaneously for them to get it any clearer.

24 posted on 01/31/2013 5:06:50 PM PST by lentulusgracchus
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To: neverdem

The purpose of all this hype on guns is to keep the right and conservatives focused on what the Demo-Coms describe as issues through their propaganda arm known as the MSM (mainline socialist media) not on the problems created by the “Libs” on their road of good intentions or the socialist/fascists/communists successors to comtrol over todays Democrat party;

Which is the cost ,waste, and corruption of this administration which had led to a 16 trillion dollar deficit.

Not one word addresses or offers a solution about the hundreds of gangland murders and shootings using illegaly obtained mostly handguns and revolvers .

Perpetuating the general populations ignorance and using code words like “assault rifles” they’re demonizing single shot per trigger pull semi automatic rifles, used for small game hunting or target practice. That are legal in every state but made to look like their military counterpart..

Military AR’s since Viet Nam and a DOD decision ARs are really medium caliber (22.3) machine guns designed to wound not necessarilly kill which is why they are automatic and fire as many rounds that are in its magazine once the trigger is kept in the pulled position.

They replace quick kill 30 caliber semi automatic (single shot) M-1, Springfield rifles and carbines used during WWII and Korea and approved in most states for use in big game hunting.

http://www.freerepublic.com/focus/f-news/2977901/posts NY Post pix of shooter using handgun

Obama certainly can’t critique a system created by his ilk .Ignored in his 23 edicts is that when once caught, perps get set free with lenient sentencing from “liberal” judges or sob sister plea bargain prosecution (which Obama supports for when a Illinois state senator while introducing legislation to sentence any 15 year old as an adult,(opps they could be fatherless) Obama voted “absent” with others on that roll call vote. But that leniency is promoted by the MSM,The New York Times CNN, NBC and,ABC. There’s certainly no criticism of “no snitch” mentality partcularly in areas where these shootings are rampant.

It would be nice at these rallys if conservatives would point these facts out to Obamas adoring public. The following copy if printed on an index sized card makes an excellent palm card easy to print up and distribute.

Democrats and RINOS
GOD DENIERS AND CONGENITAL LIARS
ARE REDISTRIBUTE WEALTH INCITERS/
FOR FIRST YOUR MONEY THEN YOUR GUNS
AND BE DEFENSELESS WHEN CROOKS COME


25 posted on 01/31/2013 5:08:31 PM PST by mosesdapoet (.Should this former Chicago "Mechanic" go out of retirement ?)
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To: Alas Babylon!; Sirius Lee
Chucky-bump, guys. Two Bronx cheers for the Waco cheerleader.
26 posted on 01/31/2013 5:09:34 PM PST by lentulusgracchus
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To: EdReform; mosesdapoet

Thanks for your links.


27 posted on 01/31/2013 8:03:22 PM PST by neverdem ( Xin loi min oi)
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To: USFRIENDINVICTORIA

So Chucky Schmucky Schumer, No Amendment is absolute? What about the 16th Amendment, Asshat?


28 posted on 01/31/2013 9:14:54 PM PST by Texas Patriot61 (Gun control is being able to hit your target.)
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To: Peet

how much responsibility is placed on the people in the theater that take the word of one person “yelling” fire.

if i smell no smoke, feel no heat, see no flames, am i to take the word alone and run for the crowded exits?

personal responsibility is a frightening thing, as our elected leaders try to dodge theirs, by infringing on ours.

tar and feathering is too good for them.

teeman


29 posted on 02/01/2013 9:39:27 AM PST by teeman8r (Armageddon won't be pretty, but it's not like it's the end of the world.)
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