Blog | Wednesday, October 28, 2015

Speaking freely of guns

I am about to speak freely of guns, because I can. When I do, many of you will no doubt be inclined to mutter “amen,” quietly to yourselves. Others of you will no doubt feel compelled to throw up all over me, as you have done under similar circumstances before. I expect to hear preferentially from the latter group, because they seem perennially inclined to shout; but frankly, Scarlet, I don't give a damn. Whatever their current predilection for projectile vomiting, I was there first. I am sickened and disgusted by us. But first things first.

Before speaking freely of guns, I am inclined to speak freely of speaking freely, again because I can. I can, because of the First Amendment to the U.S. Constitution. I think we should spend a little time there, before wading into weeds for the sake of the Second. The First Amendment is … first. It comes before the Second. It is primary, numero uno. If the Second Amendment is sacred, the First is, if anything, more so. It is, if anything, more American, more patriotic, more … constitutional. Those inclined to go beyond the reverence we all feel for the Founding Fathers and impart to them attributes they do not warrant—omniscience, infallibility, immunity to the law of unintended consequences—must be in for a pound if in for a penny. Those inclined to defend the utmost literalism in every utterance from 1789 as if immutable in ever-changing context are thus obligated to defend comparably the choice to make the First Amendment first, and the Second Amendment second.

The First Amendment is a complicated and multifactorial bit of rhetoric, as are the other entries in the Bill of Rights. It is the one that encompasses freedom of religion, freedom of assembly, freedom of the press, and the freedom to petition the Government. Of note, that capital “G” is the work of the founders, not me. I invite the literalists to ponder the implications for the respect of government they may have felt, relative to what seemingly prevails today.

In any event, the First Amendment does go off in several directions, but I only want to speak about speech. It stipulates that Congress shall make no law “abridging the freedom of speech.” For a moment, let's treat that with the same literalism applied by a particular faction to the Second.

When the founders talked, and wrote, of speech in 1789, there were only two ways to do it: talking, and writing. Our species invented its approach to talking before the advent of any technology. The specific origins of the printing press are now somewhat subject to the revisionism that bedevils all of history, but reliably date back to long before 1789, to the mid fifteenth century at the latest. Everything else came after.

We didn't have Morse code or the telegraph until Samuel Morse and others invented these in the 1840s. We didn't have telephones until 1876, give or take. We didn't have radio until 1895.

And, of course, we didn't have the Internet until Al Gore invented it rather recently, and we didn't have the iPhone 7 until sometime tomorrow.

Yet, all of these technologies are now clearly subsumed within the category of “speech.” Right now, for instance, you and I are engaged in speech. This is clearly protected under the Constitution of the United States. But what, exactly, is “this”? It involves my computer, and yours; my word-processing software, and yours; my Internet service, and yours; and so on. It may even involve orbiting satellites. And since it is “speech,” any law “abridging” any part of it is unconstitutional.

Houston, we have a problem. Not everyone has a computer, or cell phone, or Internet access. Freedom of speech is thereby abridged.

There is a defense, I suppose: the costs of phones, computers, software and Internet access may be permissible under the laws of the land, but are not themselves established by the laws of the land. Congress has not made a law stipulating what Apple or Microsoft can charge us.

But, on the other hand, if the Constitution guarantees us freedom of speech in just the same way it guarantees us the right to “keep and bear Arms,” perhaps Congress is obligated to remove barriers to access. Note that the Second Amendment only refers to a right to the thing, whereas the First Amendment refers directly to the thing itself. In other words, if the Second Amendment universally protects the right to bear arms, the First commensurately protects not the right to freedom of speech but freedom of speech itself. Read the text here, and see the difference for yourself.

Whether or not Congress is obligated under the Constitution to remove all barriers to everyone for every new technology ever invented that serves as a medium for speech, it is expressly precluded from abridging such access itself. The case could be made that if financial barriers preclude some of the people from freedom of speech by New Age, technological means, and if sales taxes figure in that prohibitive cost -- then Congress, and the laws of the land, are implicated in abridging. The view from that bridge is of a Constitutional crisis.

Or not. In the area of speech, for whatever reason, we don't seem to have an analogue to the NRA. We don't have a radical group with blatant ulterior motives imposing on the majority a torqued interpretation of the Founder's words, and requiring their application to things uninvented in even the wildest imaginations of their time. Were such a group to exist, we would have far more reason for turmoil about the tyrannical abridgment of freedom of “speech” in all of its modern incarnations than anything to do with guns.

Which brings us back to guns, about which I am constitutionally at liberty to speak freely. But of course, there isn't much to say that hasn't already been said.

If the opposition of the NRA and its cronies to gun control derives truly from concerns about tyranny, then they are hypocrites for the imposition of minority will on the majority is tyranny. The majority does not want to interfere with the Second Amendment; we just want it interpreted sanely. The argument that it requires no interpretation is a non-starter. Clearly, convicted felons in prisons aren't covered; that's an interpretation. Clearly, the amendment doesn't cover nuclear arms, chemical arms or biological arms; that's an interpretation. To my knowledge, not even the NRA wants everyone stockpiling smallpox and anthrax. Interpretation is unavoidable, and some of us think it ought to be sane.

As for the NRA and its allies, most of us know the motivations are all about liking guns, and/or liking the money that comes from selling them. We also know of many places around the world where guns are seemingly ubiquitous, and tyranny prevails just the same. We know of places with far stricter gun controls than we would ever consider in the U.S. with stable and fully accountable democracies. We even know what ensues when a country with loose gun control tightens it; a dramatic decline in gun-related deaths, not the advent of tyranny.

But for today, though my speech here is of course motivated by the latest calamity of our gun-related insanity in this country, I am inclined to focus it on speech itself. Guns are given their Constitutional sanctuary only in the Second amendment; speech is ensconced within the First. First things first, or so it should be. Minimally, what's good for the goose should be good for the gander. If the Second Amendment is obligated to cover “arms” uninvented and unimagined in the days of the Founders, why is the First not subject to just such terms for “speech”?

More reasonably, if the First Amendment is not interpreted to cover every technological means of “speech” unimagined by the Founders, that logic applied to the First should surely extend to the Second. We have, therein, a basis for societal opposition to high-capacity, semi-automatic weapons flowing freely, with no peril to Constitutional toes.

For now, we have an endless litany of tragedies to which we react with collective pathos and impotence, knowing for certain that we await the next. We have a bizarre double-standard, in which the First Amendment is spared the tortured literalism imposed upon the Second by those with ulterior motives.

And we have achieved a lamentable milestone in the annals of hypocrisy that would surely have the Founders more inclined to throw up than any of us. Under the guise of defending against tyranny, a well-organized minority denies the majority the expression of its will. That is, in a word, tyranny.

David L. Katz, MD, FACP, MPH, FACPM, is an internationally renowned authority on nutrition, weight management, and the prevention of chronic disease, and an internationally recognized leader in integrative medicine and patient-centered care. He is a board certified specialist in both Internal Medicine, and Preventive Medicine/Public Health, and Associate Professor (adjunct) in Public Health Practice at the Yale University School of Medicine. He is the Director and founder (1998) of Yale University's Prevention Research Center; Director and founder of the Integrative Medicine Center at Griffin Hospital (2000) in Derby, Conn.; founder and president of the non-profit Turn the Tide Foundation; and formerly the Director of Medical Studies in Public Health at the Yale School of Medicine for eight years. This post originally appeared on his blog at The Huffington Post.