Tom Kirvan
Legal News, Editor-in-Chief
For those who study constitutional law, a fascinating subject too often draped in writings seemingly designed to confuse and obscure the issues, there was an early ray of legal light in the form of Oliver Wendell Holmes Jr., particularly when it came to First Amendment freedoms.
Holmes, who was nominated to the high court by President Theodore Roosevelt and served from 1902-32, was a scholar and a writer of the finest order, spicing his opinions with memorable lines that have stood the constitutional test of time.
Such as: “Your liberty to swing your fist ends just where my nose begins.”
There was a bit of poetic justice in that turn of phrase, as there was when he wrote in a 1919 case that “free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
So, why are these memorable maxims of his, written more than a century ago, relevant in today’s society?
Look no further than what happened on the campus of Michigan State University on February 13 when yet another mass shooting took place, leaving three students dead, five seriously injured, and reigniting the national debate over gun control, mental health treatment, and the role that social media played in the case.
Each of those issues, which tragically converged in yet another school tragedy, should stir a national sense of outrage and a collective desire to take action to prevent further bloodshed.
Instead, we get finger-pointing as to who is to blame, while prompting many political leaders to trot-out the shop-worn phrase of “my thoughts and prayers go out to the victims and their families” as we consider the ramifications of the latest deadly example of gun violence.
One thing remains virtually certain, however: nothing will change in terms of limiting the easy availability of weaponry. Those who believe strongly in the Second Amendment “right to bear arms” will be emboldened even more in the wake of the latest shooting, somehow believing that the only way to counter such killings is to be armed to an even greater degree.
If anything is to be gained from yet another stab at innocent Americans by a deranged killer, it is perhaps a discomforting opportunity to learn history’s lesson.
Shootings and terrorist attacks are not new forms of political expression, but instead have a puzzling and unsettling past. Violence, and the fear of it, now poses threats to the basic quality of life for every American. For some, the routine of everyday life may be so disrupted that it will be difficult to distinguish between the real and imagined.
All this should leave us to wonder what the Founding Fathers of this nation would make of their constitutional handiwork if they had the opportunity to fine-tune their art.
They most certainly would be alarmed at the threats to democracy, our fundamental liberties, and the rule of law, especially in light of advances in technology that continue to boggle the mind.
They might worry that some of those precious freedoms outlined in the Bill of Rights have given some the license to go too far, thereby endangering and infringing upon the rights of others who seek a safe, happy, and productive way of life.
How best to draw that fine line between freedom and oppression has been the principal job left to the legal profession, where lawyers and judges have made a steadfast point to preserve the rule of law concept at the expense of the rule of man option.
The task now is to not cede ground to those who seek to impose their will on others, offering instead an opportunity to safeguard the interests of a general public sickened by the continuing string of senseless shootings.
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