In her weekly propaganda column, Governor Kristi Noem appeals to the phallus-y absolutism of the Second Amendment:
The Constitution doesn’t always use plain language, but when it comes to our right to defend ourselves, the Second Amendment is quite straightforward: “The right of the people to keep and bear arms shall not be infringed.”
It’s often been said that the Second Amendment exists to defend all the rest, including the First. I couldn’t agree more….
Unfortunately, many politicians seem determined to directly infringe on our right to bear arms, despite the Second Amendment’s clear wording that it “shall not be infringed.”
President Biden recently announced several executive actions regarding gun control. He claimed that these actions wouldn’t infringe on the Second Amendment. But that’s false.
…“Shall not be infringed” could not be any plainer. If only President Biden could be forthcoming and realize that his actions are a direct infringement on our right to keep and bear arms [Gov. Kristi Noem, weekly hogwash, 2021.04.09].
It is Governor Noem’s explanation of constitutional rights that is false, not President Joe Biden’s proper application of executive authority to balance our rights with the common good.
The First Amendment does far more than the Second to actively, regularly protect all of our rights.
When I challenged Initiated Measure 24 and 2019 House Bill 1094 as unjust infringements of our Constitutional rights, I did not shout “Lock and load!” and stage an armed assault on the Capitol. I spoke up, in public, in the press, and in court. And I won: I secured the judicial overturning of those bad laws and defended the rights of more South Dakotans than have ever been protected by any one person’s engagement in Second Amendment activity in this state.
Yet I won not because the First Amendment activities I was practicing and defending are absolute. Far from it. The very court rulings in my favor (SD Voice v. Noem I, SD Voice v. Noem II) noted that the First Amendment is not absolute and that the state may impose reasonable, narrowly tailored restrictions on free speech when the state can demonstrate some compelling interest in such restrictions. I didn’t beat Kristi Noem in court twice because our First Amendment rights can never be infringed; Noem lost because she couldn’t prove that the state had a compelling interest that justified restricting our First Amendment rights.
The text of the First Amendment doesn’t mention any ifs about compelling state interests—on face, the First Amendment seems as absolute as Noem claims the Second is:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances [First Amendment, United States Constitution, adopted 1789.12.15].
Congress shall make no law… abridging the freedom of speech, or of the press…. [T]he right of the people to keep and bear arms, shall not be infringed…. Those lines sound absolute, but only to superficial prooftexters like Governor Noem. Anyone who paid attention in high school civics understands that freedoms and rights exist solely in the context of a community, and in that community context, freedoms and rights are inherently defined, i.e., not infinite, but finite, bounded, limited to prevent their unfettered exercise by one party from preventing other parties from exercising their own due rights.
In community, we are all bubbles, and we may expand until we bump into all the other bubbles in our community. Any bubble that tries expanding beyond that limit starts popping other bubbles… and we can’t have that.
Governor Noem invokes this inherent limitation on rights when it suits her interests. During the first two Legislative Sessions of her gubernatoriate, Noem signed laws against “riot-boosting” conceived to restrict free speech for the sake of protecting oil pipelines, which she claims serve the common good. The first law failed in court; the second remains judicially untested. But the Governor’s legal assaults on pipeline protestors show that even she has some conception that rights are not absolute.
One of the swiftest ways to get my dander up is to tell me I can’t write something on my blog. But even I recognize that I cannot say whatever words I want whenever and wherever I want. Nor can I carry whatever guns I want whenever and wherever I want.
I recognize that speech leading to riot or insurrection should be against the law, even though the First Amendment contains the phrase shall make no law. I recognize that bearing arms in ways that cause undue death and destruction should be against the law, even though the Second Amendment contains the phrase shall not be infringed. To claim otherwise, to prooftext the Bill of Rights to avoid hard policy debate and stoke convenient partisan obstructionism, reveals a cheap and shallow intellect incapable of the nuanced and complicated balancing of rights, responsibilities, and needs required of every lawmaker in a civil society.
Related Reading: Tom Lawrence paid attention in high school civics. He notes this morning that Governor Noem omits the part about the “well-regulated militia” from her screed. The authors of the Second Amendment themselves recognized the necessarily limited nature of the right to bar arms.