Yesterday, the Supreme Court heard oral arguments for a case to determine whether or not the disgusting vitriol spewed by the Westboro Baptist “Church” is Constitutionally protected free speech. From the NY Daily News:
The Supreme Court on Wednesday agonized over the case of a family grieving the wartime loss of a Marine, a family traumatized by an obscure church’s protests at his burial.
Let me be clear–this “church,” and its message of near-universal hate, is as loathsome and contemptible as anything I have ever had the misfortune to hear of, and it’s an embarrassment to share a planet with such people, let alone to have to call them countrymen. Additionally, the anguish they have intentionally brought to Albert Snyder (the man who brought the initial lawsuit, and the father of Lance Corporal Matthew Snyder, killed in Iraq four years ago) and all the other families of all the other fallen heroes is, I have no doubt, completely genuine. In exploiting that anguish, the “church” has committed yet another evil.
Still, protection of free speech that protects only that speech which is not offensive, and which does not cause distress, amounts to no protection at all. Speech that no one would try to silence, after all, needs no such protection. I will confess to having racked my brain for some excuse–any Constitutionally-justified excuse–for shutting down their hate machine. In the end, though, I reluctantly found myself with no choice but to agree with Professor Eugene Volokh, in a piece he wrote for the Wall Street Journal:
Many statements might be seen as outrageous by some judge, jury or other government official: publishing the Muhammad cartoons, burning a flag, harshly condemning affirmative action or illegal immigration, and more. But, as the court pointed out in an earlier emotional distress case, Hustler v. Falwell (1988), an “outrageousness” standard can’t be an acceptable tool for restricting public debate. It is too subjective, the court declared, and—as Justice Kagan quoted at the Snyder argument—”would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.”
But how is all this relevant to gun rights?
We gun rights advocates have tended, understandably, to focus on the finding in the Supreme Court’s Heller ruling (and now in the McDonald ruling) that the right to keep and bear arms is indeed a right of the individual, protected by the Constitution.
The forcible citizen disarmament lobby, on the other hand, prefers to focus on Justice Scalia’s qualifying statement:
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose . . .
How Justice Scalia intends to square that with shall not be infringed remains to be seen, but one can safely count on those in favor of every infringement possible to point to every limitation placed on other Constitutionally guaranteed rights, in order to bolster their arguments in favor of limitations on Second Amendment rights.
In the end, remember, our possession of guns offends the gun-haters, just as Westboro Baptist’s hate speech offends people with any decency. The fact that it’s entirely reasonable to be offended by their verbal toxicity, and entirely unreasonable to be offended by the exercise of the Constitutionally guaranteed, fundamental human right of the individual to keep and bear arms, is immaterial.
The bottom line is that rights are rights, no matter who is offended, or why. To demand recognition of our right to keep and bear arms, while condoning the violation of Westboro Baptist’s right to free speech, would be both tactically unsound and hypocritical. We hold the Constitutional high ground, which means that we hold the moral high ground. We dare not surrender an inch of it, if we wish to remain worthy of the legacy of liberty handed down to us by the Founding Fathers.