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Zoning Rights

By Craig K. Comstock

Note: This was submitted as a “Shouts and Murmurs” piece to the New Yorker magazine on June 28, 2016. As a reader of that feature would,immediately know, the piece is meant to be satirical.

We improve cities by zoning: why not take a similar approach to Constitutional rights?

In response to the perceived threat of disruption (or even violence) at the GOP convention, authorities in Cleveland established a “free-speech zone” far from the convention hall. There, any demonstrators could gather, distant from delegates, and shout their slogans, wave their signs. When the American Civil Liberties Union won a lawsuit, the powers that be moved the zone much closer.

In contrast to extremists who thought of our entire country as a free-speech zone, this tidy arrangement offers a model for other zoning of rights.

For example, we could establish “free zones for guns.” These would not serve a “shooter-free zones,” such as mainly exist in some whole countries abroad. Instead, they would be carefully designated zones in which one would be free to bear arms. Thus, the second amendment (arms) could be included in the zoning wisdom now apparently applied to the first amendment (speech).

In these zones, the right to bear arms would not be limited to the semi-automatic weapons said to be appropriate for hunting deer but extend to all conventional weapons, including, for example, rocket-propelled grenades, anything that would protect a manly self-image.

An “originalist” interpretation, as advocated by the late Justice Antonin Scalia (R.I.P.), might have to conclude, in the interest of consistency, that the second amendment refers only to revolutionary war weapons, such as the muzzle-loading muskets common in “well regulated militias” around 1789. But why remain stuck in the 18th century? Let us be free to bear any arms that can now be borne, at least in certain zones.

 This careful zoning could also serve as a model for other rights: for example, for the fifth amendment on freedom from self-incrimination. It could be apply only in a zone located on courthouse steps, say, but not in the actual courtroom. And the fourth amendment prohibition against “unreasonable searches and seizures” would apply only in search-and-seizure-free zones, clearly identified in advance.

       In this manner we could enjoy all the advantages of a police state, while continuing to honor the Bill of Rights.

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