The Corner

Law & the Courts

The Bill of Rights Doesn’t Have to Be ‘Absolute’ to Have Teeth

The Bill of Rights (Wikimedia Commons )

David responds to Joe Biden’s claim that “no amendment in the Constitution is absolute”:

There are already tens of thousands of laws governing individual gun ownership in the United States. There are more laws restricting this guaranteed individual right than any other in the Constitution. The notion that gun ownership is “absolute” — or anything in the proximity of absolute – is preposterous beyond words. Imagine your freedom of speech being contingent on an FBI background check? (Though maybe we shouldn’t give progressives any ideas.)

David is right, of course. But what annoys me the most about this claim is that it is totally irrelevant to the question of whether Biden’s plans are legitimate. Invariably, people who say that a “right isn’t absolute” are not trying to determine the proper scope of the right so much as they are trying to skip a step by implying that if some regulation is permissible then all regulation is permissible.

Which it’s not.

This line is most egregiously deployed in debates over speech. At the bleeding edge, the First Amendment does indeed allow a few restrictions on speech. But they are so narrow in practice that to observe that the right isn’t absolute is to say nothing of use. Sure, the First Amendment isn’t unlimited. That doesn’t mean that you get to arrest people who offend you. And sure, the Second Amendment isn’t unlimited, either. That doesn’t mean that Joe Biden gets to confiscate the most commonly owned rifle in the United States. These provisions are there to make it difficult for government to act. They would not be especially useful if they could be defeated by pointing out the falsity of claims that nobody is actually making.

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