Megan McArdle, Jason Zengerle and Will Wilkinson have been having an argument about whether it's acceptable to carry guns to health-care protests and near the president of the United States. I don't want to try to summarize the whole debate, but I do want to comment on one aspect of it. Jason Zengerle takes the position that a gun-toting protester "makes the job of the Secret Service that much harder--and therefore increases the risk that the Secret Service won't be able to stop someone...who does want to try to assassinate the president." Will Wilkinson responds:
The silliest thing is Zengerle's casual assumption that if the free and peaceful exercise of an enumerated constitutional right "takes up resources," then the state may therefore limit it. I doubt he'd like to generalize this principle.
First, I'm not totally sure Zengerle's position is that the state "may therefore limit it." But even if it were, I doubt Will would like to generalize a principle dictating that the enumerated right always trumps state interests! This isn't complicated. Let's say we have a crowded theater. And let's say I exercise my seemingly enumerated First Amendment right and shout the word "Fire!" And let's say that several dozen people are grievously injured in the ensuing chaos. (Let's further assume that many of these people are recipients of generous, reliable Medicare benefits, so the state bears a cost.)
The fact that this situation is so preposterous is exactly why the law prevents it from happening: courts have created common-law doctrines like "fighting words" and "clear and present danger" for the obvious reason that the exercise of a right can have dire consequences, and some consequences are too costly to bear. Will might think that in this circumstance the cost is not prohibitively high, but there's nothing silly about a suggestion to the contrary.
A second point is worth making. The vast majority (all?) of our enumerated rights are negative: The say that the state can't stop you from engaging in a particular activity. But the fact that some activities are protected does not mean that these activities are worthy of special moral praise. The mere fact that you are carrying a gun or speaking freely or refusing to self incriminate at your trial (a la OJ Simpson) does not and should not insulate you from criticism. It's perfectly fair game to acknowledge that a certain activity is legally protected while also taking the position that lots of the people engaging in it are idiots.
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