The 1st amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The 2nd Amendment states:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The frustration progressives have found in the age of Citizen’s United and since Newtown, to restore previously enacted and popularly accepted limits on the 1st amendment (money in politics) and the 2nd amendment (firepower/gun control) both come back to conservative lawmakers, media and their constituents having recently adopted an antagonistic stance towards common sense restrictions on each.
In each case we also know that such antagonistic stances derive from the cynical moneyed interests behind the dissemination of talking points against unfettered rights. The Chamber of Commerce, Koch Brothers, massive business interests et al. and their hold on conservative think thanks (Heritage, Cato, Manhattan, etc.) and jurists’ conclaves (the Federalist Society) are the only parties arguing that campaign finance limits are unconstitutional abridgments of the 1st amendment – that we should accept that money is speech and political speech cannot be abridged even if it’s in society’s benefit to do so.
Likewise, the gun manufacturers and their influence on lawmakers, through the NRA, keeps us from passing more stringent restrictions on fire power, ammunition and the trafficking of same, even if it saves lives. What John McCain essentially said on President’s Day at a townhall meeting to the parent of an Aurora victim was that the rights of citizens to buy guns supersedes the rights of citizens to life.
Since the straw the broke the camel’s back that was the Sandy Hook tragedy we’ve finally been engaged in an extended debate over firepower/gun restrictions. What the Supreme Court has always said, even the current, extremely conservative Roberts court in Heller, is that there are, of course, reasonable restrictions that are not only allowable, but in society’s best interests. None of what is on the table since Newtown should be or presumed would be found unconstitutional, and yet you can’t sell it to 2nd amendment absolutists.
Likewise, the 1st amendment guarantee of free speech has also been found to be reasonably restricted, for the sake of society.
But what laws can pass muster with the courts seems to be less of issue today than what will be enacted by legislatures. Specifically, conservative lawmakers and their constituents have adopted a fairly recently found position on each of these enumerated rights that makes them antagonistic towards common sense prohibitions. The lawmakers have either bought into right wing think tank propaganda, been bought outright or cowed by their deranged tea party constituents into standing athwart against these sensible restrictions.
One of the most famous constructions in constitutional law is the idea that the “constitution is not a suicide pact.” (http://en.wikipedia.org/wiki/The_Constitution_is_not_a_suicide_pact) But strict constructionists are denying that the negatives for society, ie., a government by the plutocrats and thousands of gun deaths a year are worth sullying the constitution for.
Many of the arguments against further fire power/gun restrictions are nonsensical – that citizens are entitled to assault weapons in order to keep the government at bay is ridiculous on its face. The government has apache helicopters, RPGs, fully automatic weapons! These same activists arguing not to ban high powered semi-automatic weapons and high capacity magazines are not arguing they should be allowed to have fully automatic weapons and tanks! Society already says, overwhelmingly, that it’s in our best interest for people not to be able to legally purchase many weapons of war. The 1994 Assault Weapons Ban tried to restrict the kinds of weapons used in Aurora and Newtown, and it was partially successful, but partially unsuccessful because of too many loop holes that manufacturers were able to get around. Hopefully, the lessons learned from that legislation would inform the new bills.
In almost every case today the most vociferous argument from the right is the “slippery slope.” They cannot argue against the instant restriction, so they argue about where it will lead. In the case of guns the debate is entirely about scare tactics and nonsensical warnings about “Obama taking your guns.” There is no and has never been any truth to this. But the NRA and the conservative media whip it up and weak spined legislators live in fear of backlash. It never satisfies these people to say “see and watch, nobody is coming for your guns, give it a year and if it’s not as we say we’ll repeal it.” The vitriol and mistrust is too great to overcome by rational debate.
It’s perhaps harder to do anything about money in politics even though this issue infects every other issue in our democracy. Even with the outrage that was the 2012 election and the crazy spending done by Super Pacs and anonymous dark money, there’s no way that popular outrage can be militated against political spending in the way that dead 6 year-olds can make average citizens say “enough is enough.” However, polls show that Americans do understand the issues regarding political money and want restrictions. In an October 2012 poll 84% agreed that “corporate money drowns out the voices of ordinary people.” The problem is the only answer to Citizen’s United is an amendment to the Constitution and that seems such a slog even though we passed the 27th amendment just 21 years ago (Limited Changes to Congressional Pay ratified 5/7/1992) and the 16th through 27th amendments were all passed in the last 100 years.
Maybe its the failure of the ERA (and yeah, we still don’t have constitutionally guaranteed equal rights for females in 2013), that makes us believe that it’s not possible to pass a 28th amendment that says:
Section 1. [Artificial Entities Such as Corporations Do Not Have Constitutional Rights]
The rights protected by the Constitution of the United States are the rights of natural persons only.
Artificial entities established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.
The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.
Section 2. [Money is Not Free Speech]
Federal, State, and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, to ensure that all citizens, regardless of their economic status, have access to the political process, and that no person gains, as a result of their money, substantially more access or ability to influence in any way the election of any candidate for public office or any ballot measure.
Federal, State, and local government shall require that any permissible contributions and expenditures be publicly disclosed.
The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.
This is the entire text of the proposed 28th amendment introduced by Rick Nolan (D-MN) on February 14, 2013. It’s called the “We the People Amendment” and pass it we must to get our democracy back. Sign the petition, call your Congressman, write letters to the editor and get the word out about Move to Amend’s action to pass the 28th amendment and change everything.