Which right is more important: free speech, or the right to bear arms?
According to the National Rifle Association's new first vice president, actor Charlton Heston, speaking before the National Press Club last week, "the doorway to all freedoms is framed with muskets."
The Second Amendment is the "most vital" amendment, "more essential" than even the First Amendment protections of free speech, press, religion, assembly, and petition of redress of grievances, Mr. Heston said.
He's partly right: Some Bill of Rights protections are more important than others, a fact borne out by actual instances when rights collide.
For example, when judges have sought to close court proceedings to reporters in an effort to ensure a fair trial, appeals from reporters have resulted in open courts. The First Amendment's protection of press freedom is a "preferred freedom," held in even higher regard by the courts than other liberties. So, too, is free speech, which the late Supreme Court Justice Benjamin Cardozo once called "the matrix, the indispensable condition, of nearly every form of freedom."
The Second Amendment, however, holds no such preferred position. Far from serving, in Heston's words, as the right "that protects all the others," the right to bear arms has a much narrower and more specific purpose.
As the text of the Second Amendment and subsequent interpretation of it by the courts make clear, the right to bear arms has meaning only in connection with citizen service in a government-organized and regulated militia.
Debate in the First Congress about this amendment dealt with narrow military questions: maintaining civilian government control over these military forces, the military unreliability of militias as compared with professional armies, possible threats to liberties from armies versus militias, and whether to codify the right of conscientious objectors to opt out of military service (an earlier version of the Second Amendment included such a provision).
The Second Amendment affirmed that citizens have a constitutionally protected right to serve in militias in defense of state and country - but only when the government deems such action necessary or appropriate. At no point was the Second Amendment justified as a legal vehicle for protecting a citizen's right to own weapons in order to defend perceived incursions of other rights, or the Constitution itself - even against incursions on these by the government.
A further indication of the Second Amendment's subordinate role is the failure of the courts to incorporate or nationalize the provision - that is, to apply it to the states, as the courts have done with other Bill of Rights protections such as speech, press, right to counsel, and protection from unreasonable searches and seizures. Repeated efforts in recent years to incorporate the Second Amendment have met the same response in court - rejection of any claim that this amendment warrants elevation.
HESTON'S exhortation raises a further problem. American history, both early and recent, finds that people with guns are more likely to pose a threat to, rather than a protection for, the liberty of others. Whether it's the Ku Klux Klan, the Silver Shirts preceding World War II, the Vietnam-era Weather Underground, the Michigan Militia, or Los Angeles rioters, liberty has not flowered from the business end of a gun.
The very reason Americans, and the courts, revere free speech is precisely because it, not muskets, is the "doorway to all freedoms."
* Robert J. Spitzer is distinguished service professor of political science at SUNY Cortland, and the author of "The Politics of Gun Control" (Chatham House, 1995).