With a dreary predictability, Senator Chuck Schumer (D., N.Y.) shared with yesterday’s Senate hearing his “fire in a theater” argument for gun control. Schumer, as anyone who follows his exploits will be aware, is fond of this line. Adumbrating his opposition to the allegedly pernicious influence of Citizens United, the senator made the underlying point explicit: “I believe there ought to be limits because the First Amendment is not absolute. No amendment is absolute.” In an op-ed on December 23 of last year, he moved his attentions a little farther down the Bill of Rights: “While the First Amendment protects freedom of speech, no one has a right to falsely shout ‘Fire!’ in a crowded theater. . . . Likewise, the Second Amendment’s right to bear arms also comes with limits.” Thus, Schumer told the Senate hearing, we can ban “assault weapons” with little trouble.
This fire-in-a-theater jazz is a favorite of the less historically literate among America’s false-compromisers, most of whom know neither that the phrase was a (defective) analogy and not a legal doctrine, nor that the case from which it comes was subsequently overturned with some prejudice. Also generally unknown, but crucial, is what Oliver Wendell Holmes and his colleagues were (unanimously) doing in that case. Nine to nothing, they were upholding the Espionage Act of 1917, that baleful resurrection of the Alien and Sedition Acts that so stained the liberty of the republic during its brief flirtation with fascism. In doing so, Holmes and Co. were endorsing the half-year prison sentence that had been inflicted upon the plaintiff, Russian exile and secretary of the Socialist party Charles Schenk, for having the temerity to oppose in public his new country’s involvement in World War I.
It is a detestable irony that in exchange for handing out anti-draft leaflets reading, “Do not submit to intimidation” and “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain,” Schenk was not only put in prison but used as a symbol to signal the court’s pusillanimity in the face of the Wilson presidency: a majority upholding a majority against the little guy. And on what grounds? Because the United States, whose nearest border lay more than 3,000 miles away from the horrors of the Western Front, was ostensibly in “clear and present danger,” and Schenk’s leaflets — not even written in English — were such a mortal menace to the war effort that they had to be repressed.
“Because the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic,” the Court reasoned, the Wilson administration could imprison anti-war types whose words damaged recruiting, or even just “morale.” If that sounds silly, rest assured that it was. But it was worryingly common to the era. The Holmes Court held pretty much the same thing in a trio of cases over the next couple of years, sending Eugene Debs to prison for anti-war socialism, incarcerating a newspaperman named Jacob Frohwerk for criticizing the government in print, and shutting down German newspapers in Philadelphia for their intentions to “chill and check the ardency of patriotism.” A rotten principle indeed. That anybody should quote these incidents, a nadir of American democracy, in defense of his position is grim. That a U. S. senator should do so is unconscionable.
What it has to do with firearms is anybody’s guess; perhaps Schumer’s conception of equal protection is that if one amendment can be violated, they all can. In any case, it is perhaps fitting that he should draw on Holmes’s witless aphorism to help make his case. If you thought it was absurd to draw a line between a handful of Yiddish leaflets and the survival of the American republic, you’ll doubtless like Schumer’s link between assault weapons and a “clear and present danger” to the republic. Put simply, they’re not: FBI statistics from 2010 show that rifles — not “assault” rifles, just rifles — are responsible for fewer deaths in the U.S. than are handguns, shotguns, knives, and “hands, fists, and feet.” In 2010, a total of 358 people were killed with rifles, which means that, even if American crime were geographically uniform, you’d have only around a one in a million chance of being one of them in any given year. This is about the same chance as being struck by lightning or of President Obama’s going skeet shooting at Camp David.
Charles Schenk and his ilk, Christopher Hitchens observed, “were the ones shouting fire when there really was a fire in a very crowded theater indeed.” Hitchens snarled: “[W]ho’s going to decide” what is acceptable to say and what is not? Indeed, who is going to decide? The arbitrary power that laws such as the Espionage Act give to the state is precisely what those who call out “assault weapons” bans and intrusive background checks seek to avoid, an upside-down presumption that rights require demonstrations of need or are contingent upon circumstance. Suffice it to say that to hear Chuck Schumer favorably referencing the most famous censorship case in the history of the country, in which the Supreme Court ruled baldly that state power was more important than the Bill of Rights, is no comfort at all.
— Charles C. W. Cooke is an editorial associate atNational Review.