Donald Kilmer is a Professor of Constitutional Law at Lincoln University Law School, where his courses include Second Amendment and Firearms Law. He is co-author of the third edition of the textbook Firearms Law and the Second Amendment.

When someone uses the catchphrase “You can’t yell ‘fire’ in a crowded theater” – while arguing about fundamental rights, they are relying on your bias for normalcy. They are subverting the right they are attacking by camouflaging their argument. They are saying — in effect — that extreme positions on fundamental rights are unnecessary because those rights won’t be exercised in extremis, they will be exercised in everyday life, under normal, even mundane circumstances. But do we actually need constitutional amendments when things are calm and normal? Most certainly the answer is yes, but don’t constitutional rights have their greatest utility when we find ourselves confronting controversy, danger, maybe even life or death?

This condescending argument depends on one’s cognitive bias to disbelieve or minimize threats, to disregard the seriousness of a crisis, or to dismiss the dangers of man-made and natural disasters. But this normalcy bias can get people killed. Yelling ‘fire’ — when there actually is a fire — saves lives.

The famous phrase entered our lexicon of constitutional law-speak from an opinion authored by Justice Oliver W. Holmes in Schenck v. United StatesRecent immigrants to the United States had the audacity to compare compulsory military conscription in 1917 to the slavery and involuntary servitude recently outlawed by the Thirteenth Amendment.

Whether you find that argument persuasive or not, the defendants in that case had opposed the war that was raging in Europe and made a principled argument that people should “Assert [their] right[s] to [oppose] the draft.” And that “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.” Their pamphlets stated their belief that the government should be denied the power to “send our citizens away to foreign shores to shoot up the people of other lands.”

The Schenck defendants were charged and convicted under the Espionage Act of 1917. Their defense was that the First Amendment protected their right to speak out and distribute handbills arguing against government policies they disagreed with. Their convictions were upheld by a unanimous Supreme Court in 1919.

To be fair to Justice Holmes, what he actually wrote was: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Most people leave out the ‘falsely’ part.

But were these dissenters to America’s entry into World War I “falsely” shouting “fire”? What if their conviction that military conscription was tantamount to slavery was earnest? What if it was correct? Didn’t they have the recent memory of the Civil War’s carnage to serve as an example of a previous conflagration? Was that war not fought over the issue of race-based conscripted labor? If the United States government was seeking to resurrect a form a military slavery, didn’t the defendants have every right, maybe even the duty, to shout the abolitionist’s version of “fire” to oppose military conscription?

The attempt to limit someone else’s constitutional rights with the “can’t-yell-fire-in-a-crowded-theater” trope is not even correct on its own terms. It is a masquerade used to smuggle in an argument that constitutional rights should be limited by popular will – or some faction’s version of common-sense. The purpose of enshrining fundamental rights in constitutional amendments — that require a burdensome super-majority to repeal or alter — is that our political antecedents already made the policy decisions that these rights are essential for maintaining our liberties and our way of life.

Magazine capacity for semi-automatic handguns and rifles occupies a similar intellectual battle-space as was on display in the Schenck case. Most recently in Duncan v. Bonta (September 22, 2023)Judge Benitez of the Southern District of California struck down California’s laws limiting magazine capacity to 10-rounds. It was his second look at this issue after a prior decision in a case from 2017 struck down the same law. Initially a 3-judge panel of the Ninth Circuit agreed with him. But an en banc panel of the Ninth Circuit reversed. Subsequently, the U.S. Supreme Court reversed the en banc panel and remanded the case for further consideration in light of its decision in New York Rifle & Pistol Assn., Inc. v. Bruen (2022).

It should have surprised no one that Judge Benitez found even stronger support for his earlier decision by applying the new Bruen-standard of review for Second Amendment controversies.

The opinion is a work of serious legal scholarship and when read without the passion that attends these matters, it is an ordinary application of a District Court judge’s skill set. Once the obvious fact was established that firearm magazines are “arms” protected by the plain language of the Second Amendment, the government bore the burden of establishing that the kinds of limits imposed on this “right to keep and bear arms” by California’s modern law had well-established antecedents during the period of history when the fundamental right was codified by the Second Amendment (1791). Judge Benitez even entertained evidence of relevant laws when the Second Amendment was re-ratified by the Fourteenth Amendment (1868). California failed to meet that burden.

The part of Judge Benitez’s opinion that suggests a comparison to the Schenck case thoughhas nothing to do with his analysis of the “text, history & tradition” of the Second Amendment. It is his criticism of California’s attempt to establish a “2.2 Shot Average” for the defensive use of a firearm.

California apparently was attempting to shoehorn the Second Amendment into this syllogism: “If people only use — on average — 2.2 shots to defend themselves with a firearm, then a limit of 10 rounds per magazine does not infringe the right of self-defense.” That part of Judge Benitez’s opinion is a masterclass in deconstructing “expert” evidence that relies on faulty statistics, faulty reasoning, and faulty facts. It should be required reading for law students when studying how to impeach expert testimony.

California’s “2.2 Shot Average” argument is also analytically defective. Even if it is true (it isn’t) — the 2.2 shot paradigm depends on a dangerous normalcy bias. By definition the use of deadly force in defense of yourself or a loved one is already an extreme situation calling for extreme measures. What if your particular self-defense engagement requires more than 10 shots? Maybe more than 20 shots? More than 30? In that situation, having one too few rounds to defend your life is a mistake you only get to make once. One thing you can count on, the person trying to kill you is unlikely to be complying with firearms magazine limits.

Finally, the “2.2 Shot Average” argument is also deeply flawed on a constitutional level. Exactly how many words should someone be limited to when exercising their free speech rights? How many pamphlets should the government permit you to print and distribute with your message? How many church services are enough before government can limit your right to worship? How much of your home should be given over to quartering government soldiers? How much privacy is too much when your papers, houses and effects are subject to indiscriminate search by nosy government agencies? How much life, liberty, and property are you willing to risk before insisting on your right to be silent, or your right counsel during custodial interrogation?

How much Constitution do you need?

The use of deadly force to repel deadly force will always be a human action taken in extremis. It is also human action where you will definitely be exercising a uniquely American Second Amendment right to keep and bear arms. You can ask the successful defenders of the kibbutz’s in Southern Israel how many rounds they would be willing to limit their rifles to. You can’t ask the unsuccessful ones.

When the government tells you, you can’t yell “fire” in a crowded theater — when there is a fire — then the government is acting outside of its constitutional limits.

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