Sheriff Downey, Where Was Your Concern for the Constitution on the Courthouse Steps?

Jeffrey Schwartz / Sunday, Feb. 3, 2013 @ 8:56 a.m. / Op-Ed

These days, we read and hear on TV, radio and Internet blogs from all kinds of people who are passionately writing and speaking in defense of their constitutional rights. As a lawyer and director of a non-profit devoted to the redress of constitutional violations, I wish this newfound interest wasn’t limited to just one section of the Constitution—the Second Amendment right to bear arms.

These same people had a different take on our constitutional rights not too long ago when hundreds of thousands of people gathered around the world and in Humboldt County as part of the Occupy Movement. Back then this was their take on constitutional rights: “I believe in free speech, but….” They ended that sentence with something like this: The right to free speech is not absolute and there should be restrictions when it infringes on the rights of others to walk by or forces them to look at signs they disagreed with or see and smell unwashed people in dirty clothes.

The same people talking now about an absolute Second Amendment right to bear arms complained then of how uncomfortable it was to walk past Occupy protesters to get into the Humboldt County Courthouse. Or how inconvenient it was to walk 100 yards to enter from the other side of the courthouse to avoid the protesters. The First Amendment right to speech and assembly, they said, must be weighed against the rights of others: mostly the right not to confront ickiness and inconvenience.

Now most of these same people who were ready to limit the First Amendment speech a year ago, are infused with invigorated energy at a level unseen in constitutional advocacy to ensure that not an inkling, not an iota of their Second Amendment right be curtailed at any cost.

Where is the, “I respect the right to bear arms, but…” preface to their continued fight to protect constitutional gun rights? Regulating the right to free speech if it means walking around the corner to enter the courthouse is okay to them, but regulating the use of semi-automatic mega rifles to keep them out of the hands of maniacs, no way.

A stark example of this is the recent opinion of Humboldt County Sheriff Mike Downey. In the Times-Standard recently he stated his support of gun rights. (“Downey says he has constitutional concerns about gun control.” T-S, 1/27/13.) This same Mike Downey last year led the “I-believe-in-free speech-but…” crowd as he cleared the courthouse steps and put up a fence and restricted signs. You won’t find any “buts” in his arguments and actions this time around. (Disclosure: I like Mike Downey. He is kind, caring and compassionate.)

Mike Downey and other Humboldt County law enforcement officers have no qualms fudging our rights to privacy when it comes to searching the home of a medical marijuana patient. But ask a gun show vendor to check to see if a crazy maniac should own a gun, no way. That is an infringement of our Second Amendment right, they say.

Sheriff Downey, where is the “I believe in the right to bear arms but…” scenario when it comes to the Second Amendment? What makes the Second Amendment so much more precious and unregulated than the right to free speech or privacy?

We all agree that you can’t yell “Fire!” in a crowded movie theater. There are reasonable limits to our First Amendment rights. Why can’t we agree that you can’t own a semi-automatic assault rifle loaded with a 30-round magazine? Without any limits we make it easy for some crazy person every once in a while to fire one in a crowded movie theater. And that’s more than icky or inconvenient. That’s insane.

Jeffrey Schwartz is a criminal defense attorney and director of the Humboldt Center for Constitutional Rights in Arcata.

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