Ditkaless Wonders
Footballguy
And lastly, is this an argument you structured yourself, or is this one that is commonly around right now and I have simply missed it?The doctrine of clear and present danger has been named several things over the centuries, and the Court has moved around it for the most part, but at the core, is the constant struggle between freedom and security. How much speech is too much speech before that speech actually harms the country. The purist in me says that no speech is ever harmful, and the immediate disintegration of the very basic right we have as citizens under this Constitution gets attacked when we start to limit that speech. Then again, we do it all the time, because we have combinations of standing law, common sense and for much of our political history - even including today - a majority of citizens that kinda get what the free speech thing means. There are many parallels you can make between speech and pornography. We know the "bad" speech when we see it. We see it, for example today, in Citizen's United speech. We see that somehow - something is wrong. Maybe we are having a hard time defining it or even conversing about it, or maybe not, but we know something is off.
So, the Court needs to evaluate suppressive dangerous and destructive speech. That is the nature of where the CaPD doctrine comes into play. The progeny of cases that dealt with its early precursors and the current law are easy to track. You can start all the way to the Alien and Sedition Acts. Our very founders who wrote the Constitution knew instinctively that there was something wrong about French interference in the American government in 1802 and that something had to be done. During World War I though, something changed. Media was more powerful and actual sedition and obstruction of the Army's ability to operate the government's ability to prosecute the war became a problem. Lincoln dealt with something similar and just suspended habeas corpus.
Justice Holmes' wrote that speech is a clear and present danger if it is used in such circumstance to create danger that will bring about the substantive evils that Congress has the right to prevent. Holmes' wasn't an absolutist though and later dissented in several cases where his argument was used to go too far when he thought the Court or the legislature went too far. Throughout the next decades the last truly seminal case is Brandenberg where the CaPD test was used with regards to neo-nazi's. That Court said that speech cannot be limited even when the speaker is advocating the use of force against the government unless that advocacy is producing imminent lawlessness and is likely to incite further such action.
It's always been a phrase used for free speech. I think it's time we use the test in terms of the use of the Second Amendment and the speech that attaches to it if necessary. Because ultimately. Holmes' was right - speech that brings about substantive - true, real - evils that Congress is tasked to stop must be regulated. It is the very same foundational argument that the founders used when they debated the Second Amendment. We aren't talking about situational hypotheticals, and neither is the clear and present danger test. We are talking about real, on the ground, witnessed evils that Congress is required to regulate and if necessary, stop. We are beyond the right to bare arms. It's a right that should be protected. But the founders knew there would be government oversight and regulation. The very men who wrote the very Amendment that some people now use as some kind of impenetrable shield of ignorance saw the Amendment and a penetrable shield of justice. The two are not the same.
There is nothing more evil than a society allowing its children to be used for cannon fodder. To allow its future generations to be wiped out because the adults like to play with their toys and will be damned if anyone tells them no. Children that witness the massacres become the adults, and the adults that would tell them that they are the problem become the children. And the children are running this country into the ground because holding an assault rifle is awesome and cool. We've reached the tipping point that Holmes' defined in spirit with his words. We are at the imminent lawlessness point when it comes to the ownership, sale, and use of military weapons by the citizens of this country. Our citizenry is armed too much. It's time to draw back and protect our children and Congress needs to do its job. We don't need to eliminate the Second Amendment, nor do we need to "modify it," because no such modification is necessary. Congress is fully capable, and was fully empowered by the founders, to regulate the use and commerce of the arms that the citizens would own.
Any group that advocates the enhanced arming of their group in the face of the evils that society is visiting upon itself is a clear and present danger. Any group that supports such advocacy with their money and their own personal voice is a clear and present danger. Any Congress that fails to regulate, expose and eliminate the evils that our society has to deal with because of money and only money is the very evil that is the definition of a clear and present danger to this country.
If you refuse to support the elimination of these assault weapons used to murder our children then you are a clear and present danger to the safety and security of this nation. If you give money to the people that would that money to influence our government and have them tie their own hands behind their back and not do anything then you are a clear and present danger to the safety and security of this nation. When you hide behind the tired selfish class warfare of demanding that guns held by gangs be the first focus you become the seditious speaker that would undermine the very fabric of the nation for your personal political protection. You become the French in 1802, the slave owner in 1861, the german spy in 1913, the klu klux klan member of 1950, and the terrorist of 2017. And on many levels that's not fair either because there are good people with good intentions and that would never use a gun the wrong way who get caught by my definition, but really I just don't care at this point. None of us should. We aren't talking about removing a right, we are talking about reasonable regulation.
There is a limit to every single freedom we have in this country. Every single one. For a myriad of reasons. Many of those reasons are the protection and safety of our younger generations because without a new generation to come after us and run the country, we are doomed. We understand that at an instinctual level, at a societal level and at a political level. But we somehow need to temper thousands of years of human understanding itself, ignore the reality of what the founders did, and descend into ignorant selfishness for one part of the overall Constitution. It's repugnant. The NRA is repugnant. It's supporters and those that would speak for it, vote for it, and give money to it are repugnant. Now. Maybe in the past they weren't. But now, right now, they are repugnant. They are an evil.
And they and their supporters and clear and present danger to the United States.
BTW, thank you for responding and sharing the argument.
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