Correcting Congressman Eric Swalwell on 1A (and 2A)

Perhaps the most specious decisions of the Supreme Court are the ones limiting free speech. The infamous “you can’t yell ‘Fire!’ in a crowded theater” declaration by Justice Oliver Wendell Holmes has spawned a litany of commentary justifying prosecution of one person or another for anti-government or anti-religious speech. It’s also allowed power-hungry politicians – on both sides of the aisle – to suggest the Constitution is more than just a document full of unchangeable laws to a more malleable document meant to change at the whims of those in government.


The latest politician to opine the Constitution is simply for those who have all the power is California Congressman Eric Swalwell. The Democratic presidential candidate suggested to CNN’s State of the Union on Sunday morning the pliability of the First Amendment applies to the Second Amendment.

But I think the greatest threat to the Second Amendment is doing nothing. And the Second Amendment is not an absolute right. Just like free speech, you can’t shout fire in a theater or lie about the products you are selling, you can’t own a bazooka, you can’t own a tank, you can’t own rocket-propelled grenades.

First and Second Amendment activists would disagree – rather loudly – on Swalwell’s claim.

Popehat’s Ken White offered one of the best critiques of Holmes’ fire in a crowded theater argument and the rhetorical laziness of those who use it to cite their government-strengthening argument (emphasis original).

Its relentless overuse is annoying and unpersuasive to most people concerned with the actual history and progress of free speech jurisprudence. People tend to cite the “fire in a crowded theater” quote for two reasons, both bolstered by Holmes’ fame. First, they trot out the Holmes quote for the proposition that not all speech is protected by the First Amendment. But this is not in dispute. Saying it is not an apt or persuasive argument for the proposition that some particular speech is unprotected, any more than saying “well, some speech is protected by the First Amendment” is a persuasive argument to the contrary. Second, people tend to cite Holmes to imply that there is some undisclosed legal authority showing that the speech they are criticizing is not protected by the First Amendment. This is dishonest at worst and unconvincing at best. If you have a pertinent case showing that particular speech falls outside the First Amendment, you don’t have to rely on a 90-year-old rhetorical flourish to support your argument.


The original analysis of the First Amendment by St. George Tucker in the 1803 masterpiece View of the Constitution of the United States completely turns Holmes’ argument on its head.

Liberty of speech and of discussion in all speculative matters, consists in the absolute and uncontrollable right of speaking, writing, and publishing, our opinions concerning any subject, whether religious, philisophical, or political; and of inquiring into and, examining the nature of truth, whether moral or metaphysical; the expediency or inexpediency of all public measures…

This doesn’t mean people can’t be punished for actual calls to violence or threatening someone’s life, liberty, or property. The laziness of the “fire in a crowded theater” argument is in its broad brushing claim government has the right to determine which speech is tolerable and what isn’t.

Swalwell sees the Second Amendment as he does the First. No one has the absolute right to own a weapon of their choosing, just like they cannot publicly espouse opinions contrary to the accepted norms. One might wonder about his opinion on civil asset forfeiture or the government not giving due process to those under surveillance.

We, again, go to Tucker for commentary on the Second Amendment.

This may be considered as the true palladium of liberty…The right of self defense is the first law of nature: in most government it has been the study of rules to confirm this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color of pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.

In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorize the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.


The Supreme Court – as with the rest of government – has obviously failed in keeping either charge regarding the First and Second Amendments by allowing the notion of flexibility to seep its way in.

Yet, there’s no doubt what the Founders intended. The amendments (all of them) are as malleable as a diamond – that is to say, there is no malleability at all. They mean what they mean. The fact that there are those who try to make some sort of carve-out, deserves scorn.

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