You can’t yell FIRE in a crowded theater!

[Note: this article is a compilation from numerous sources. See Bibliography below]

Man shouting. Image shot 2001. Exact date unknown.Anytime I get into an discussion with people about the Second Amendment, they inevitably bring up the idea that the rights enshrined within the Bill of Rights have limits. And the one thing they constantly fall back on is the example that “you can’t yell fire in a crowded theater.”

This argument is one that attempts to tie two completely different aspects together as if they are forcing a square peg into a round hole.

Here it is:

1. Freedom of speech is a constitutional right.
2. It can be infringed by disallowing a person to yell “Fire!” in a crowded theater.
3. Therefore all rights (including gun ownership) can be infringed.

“You can’t yell fire in a crowded theatre.”

To that I say, “Yes, I can…if there’s a fire.”

I will concede the point that rights do have restrictions in a free society is valid , but not often in the context used by those who put forth the notion.

Timothy Havener, in a article, makes a cogent point: “The criteria of limitation is set by the encroachment of one right upon another. Stating you cannot yell fire in a crowded theatre only remains valid if there is no fire because in doing so you are encroaching on the rights of others to enjoy their entertainment. Conversely, if there is a fire and you verbosely utter its presence you would be met with appreciation and thanks and would not have stepped across the line of encroachment.

Our natural rights within a civil society are compromised to some extent by default. We must accept some infringement on the natural state of our liberty where our rights may infringe on others. This is the basis for law and all reasonable restrictions on our rights. What we must never accept, however, are restrictions based on the faulty premise of safety and protection from what may occur. When we enter this territory we lay liberty upon a sacrificial altar and entomb justice in a grave of conceit.

The road to tyranny is often paved with the good intentions of well meaning people trying to protect us from ourselves when they should be more worried about protecting themselves from the rogue power of a government not bound by strict constitutional limitations.

No man’s freedom should be taken for the potential risk of what may happen or what might occur. If an act or a purported act in itself is not criminal by nature then there is no justification for a seizure upon the freedom of the individual.”

To put it another way, in regard to free speech, you enjoy your first amendment rights completely and totally unrestricted, and are presumed innocent until the moment you decide to open your mouth and form the words inciting mutiny or violence.  Up to that point,

  • There are no censors standing over your head making sure that you don’t write anything seditious.
  • There is no waiting period while your background is checked before being allowed to speak.
  • There is no requirement to register your newspaper or blog with the government.
  • There is no government organization that keeps a list of approved publications and requires a $200 tax to move that instrument of speech between people.
  • You are allowed the full exercise of their rights up until the exact moment when they decided to speak in a way that was imminently against the public interest.

[Less anyone reading this miss the point, the above is analogous to guns]  There are restrictions on what you can say, but there is always the presumption of innocence. It’s only in reaction to an act or speech that those restrictions kick in.

We should have the same kinds of restrictions on the Second Amendment. Just as with the First, you should have the full and complete enjoyment of your rights without any reservations or restrictions until you do something that proves your motives are against the public interest.

Because “innocent until proven guilty” isn’t just a phrase — it’s supposed to actually mean something in this country.

Invariably, the next step after using the “Can’t yell fire in a theatre” fallacy is  “Oh then I guess you think everyone should have nuclear weapons then, huh?”

This is using the ‘strawman logical fallacy.”

(For anyone reading this that is unfamiliar with that term, the Straw Man fallacy is committed when a person simply ignores a person’s actual position and substitutes a distorted, exaggerated or misrepresented version of that position.  This sort of “reasoning” is fallacious because attacking a distorted version of a position simply does not constitute an attack on the position itself.)

I’m surprised you didn’t toss into the mix, along with atom bombs, chemical and biological weapons.

Why not tanks? Why not nukes?

“Have you seen the going price for plutonium these days?” 🙂

Seriously though, how many Americans have the funds to develop a tank, or purchase one? And would someone with the tens of millions of dollars required to purchase a tank actually use it unwisely? And if they did, the national guard would destroy it quite quickly. As for the nuclear weapon, a citizen would have to mine uranium, develop the technology, and then assemble it into a weapon to pose any threat. If several entire nations have tried unsuccessfully to develop a nuke, then what would lead a person to believe that a private individual would succeed? And even if one did, would not a private citizen who spent billions developing a nuke probably be more rational than the reckless, tyrannical leader of North Korea?

Let’s be real. No one in the current argument in the right to bear arms is talking about the right to bear tanks and nuclear weapons.  



Article: The Second Amendment, the First and Yelling Fire in a Crowded Theater
Written by Nick Leghorn on January 13, 2013 and appears on the website:

Article: Yelling Fire In A Crowded Theatre
Written by Timothy Havener on April 20, 2011 and appears on the website:


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