“You can’t yell ‘fire!’ in a crowded theater.” You’ve heard the line before. It is frequently used to defend more expansive restrictions on various constitutional rights, and is often thrown down as a final “checkmate” in arguments over the legitimacy of certain policies.
The phrase traces back to the famous Schenck v. United States case, which considered whether Charles Schenck could promulgate an argument that was in opposition to the U.S. war effort. In the case decision, Justice Holmes declared, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” spurring the beginning of a long and hard fought debate over the inalienability of constitutional “rights.”
Today, the phrase is often co-opted to advance anti-Second Amendment arguments, essentially implying that since First Amendment protections of free speech can be limited, so can the Second Amendment right to “keep and bear arms.”
But is that really what Holmes meant in Schenck?
As Eugene Volokh for the Washington Post noted last week, “But of course shouting fire in a crowded theater is often constitutionally protected. For instance, if there is a fire, shouting fire may be good.”
The crux of Holmes’ decision rests on a key component of his statement: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Holmes went on to note that, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (emphasis added).
The argument addressed the context of their use, not the content. By the court’s logic in Schenck, a restriction on the right to keep and bear arms would have to be based on a “clear and present danger” resulting from the exercise of the right. Additionally, it would have to imply a falseness or ill-intention for their to be any consideration of restriction.
Restrictions on 2A rights defendable under Schenck might include restricting the brandishing of a weapon in a crowded theater without cause. That would provide a reasonable indicator that the bearer of arms was a “clear and present danger.” However, carrying a firearm for self-defense purposes is quite different. Much like truthfully shouting fire in a crowded theatre – it should be protected and applauded.
Even the most stringent restrictions on the right to keep and bear arms could hardly be used to suppress the possession of a firearm in one’s home, which makes examples such as California’s Handgun Roster such an egregious assault on individual liberty.
So the next time someone tells you that open carrying a handgun for self-defense is like “shouting fire in a crowded theater,” just remind them that you have every right to shout “fire” in a crowded theater, when you’re doing it for the right reasons.
Evan Gillespie is a member of the Firearms Policy Coalition News and Take Action teams