Take, for example, our freedom of speech. It is one of the most clearly stated and robustly protected rights in the Constitution, yet it is also subject to numerous restrictions. Our speech might not be protected if it falsely damages someone’s reputation, aids and abets a crime, contains a threat of violence, reveals a trade or military secret, harasses, plagiarizes, inflicts severe emotional distress, is deemed to be obscene, incites violence, or leaks classified information, to name a few. The United States Supreme Court further allows restrictions on when, where, and how we can express ourselves even when the message itself is protected. In some cases we control who may speak, such as limitations we may constitutionally impose on the speech of students, prisoners, and government employees.
So clearly and unequivocally held was this worldview that no less a liberal squish than Richard Nixon Supreme Court appointee Warren Burger said after his retirement in 1991 that the Second Amendment “has been the subject of one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups that I have ever seen in my lifetime.”
This reading was based on precedent. The Supreme Court had clearly agreed with Burger’s interpretation and not that of the special interest groups he chastised, perhaps most famously in a 1939 case called U.S. v. Miller. That ruling said that since the possession or use of a “shotgun having a barrel of less than eighteen inches in length” had no reasonable relationship to the “preservation or efficiency of a well regulated militia,” the court simply could not find that the Second Amendment guaranteed “the right to keep and bear such an instrument.” Period, full stop. And that was the viewpoint adopted by the courts for years.
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