Guns vs. Speech: Does the 2nd Amendment Threaten the 1st? – NYU Law


Over the last year, peaceful demonstrators across the United States have been met by armed individuals and self-proclaimed “militias.” Between January 2020 and June 2021, at least 560 protests included the presence of armed individuals other than law enforcement. One out of six of those demonstrations reported violent or destructive activity, according to research from Everytown for Gun Safety.

Can speech be free when armed counter-protesters mix with unarmed protesters? What does this tension between the freedoms protected by our Constitution’s First and Second Amendments bode for democracy? And should state laws regarding the presence of guns at polling places be strengthened?

To answer these questions — and look at what this looming conflict may mean in the Supreme Court — Brennan Center Fellow Eric Ruben (SMU Dedman School of Law) joins a group of prominent legal scholars: Mary Anne Franks (University of Miami School of Law), Darrell Miller (Duke University School of Law), Eugene Volokh (UCLA School of Law), and Timothy Zick (William & Mary Law School).

This event was produced in partnership with New York University’s John Brademas Center.

Dr. Mary Anne Franks, Professor of Law and Michael R. Klein Distinguished Scholar Chair, University of Miami School of Law; Author of The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech

Darrell A.H. Miller, Melvin G. Shimm Professor of Law, Duke University Law School; Author of The Positive Second Amendment: Rights, Regulation, and the Future of Heller (with Joseph Blocher)

Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA Law; Founder and Coauthor of The Volokh Conspiracy, a leading legal blog

Tim Zick, John Marshall Professor of Government and Citizenship and William H. Cabell Research Professor of Law, William & Mary Law School

Moderator: Eric Ruben, Assistant Professor, SMU Dedman School of Law; Fellow, Brennan Center for Justice

This was the preview summary of an event held yesterday by NYU Law.

In it we see the setup of a discussion about 2A rights and 1A rights. Armed protests and counter protests have been a common sight in the US, especially since Virginia’s massive 2A rally early in 2020 (remember folks? before the pandemic? there was a time that was a thing despite it feeling otherwise)

I want to point something out to you though. This sentence here… and the source of that information.

Between January 2020 and June 2021, at least 560 protests included the presence of armed individuals other than law enforcement. One out of six of those demonstrations reported violent or destructive activity, according to research from Everytown for Gun Safety.

So one out of six. Or roughly 93 of them reported ‘violent or destructive activity’ of some sort. It does not even specify on the part of the armed protestors or counter-protestors as the case may be, although that is the implication. But if it is only the implication, and not the statement they can use any event in which a violent incident did occur, even if it was not participated in by the armed group or if they did not initiate the incident and were involuntary participants.

The specific language used by groups like Everytown is deliberately chosen to inflate their numbers and obfuscate important facts.

Notice they didn’t say 93. They said one in six after giving you the number 560. What number is going to stick in your head? 560.

They (Everytown) could have said, clearly and I assume accurately, that 93 protests between January 2020 (Which was the Virginia 2A protest) and June 2021 had violent or destructive activities occur. What then should be followed up on are the occurrences and circumstances of each incident of violence or property damage. Were armed protestors/counter-protestors involved? Did they initiate? How many of those incidents have strong correlative causes to the protest and the armed participants and of those do any of them have further strong connections to a deliberate suppression of 1st Amendment rights? Do the suggest a non-deliberate or tangential suppression of 1st Amendment rights?

Most importantly, perhaps, did anyone remind those supposedly repressed speakers that they too have every right to be armed for their protection and that a violent life threatening assault upon their persons, yes even for stating their opinions, could be meant with an appropriate retaliatory response to preserve the assaulted protestors lives?

Yes, crazy folk exist. Yes, a protest is a prime place for tempers to flare. But the exercise of a right to arms is only suppressing the first amendment if the armed individuals are preventing the exercise, IE: they are actively threatening to shoot demonstrators, openly implying they will shoot demonstrators, or otherwise using physical or implied physical force to stop and disrupt the protest. Nearly all of which would be considered a lethal threat to the person or group under assault and justify the use of force in defense…

Notice that of the 93 events they say had violence or damage, they never gave an instance where shots were fired. There have been, but so rarely and with such differing contexts that it would lose all the gravitas of the 560 incidents they (Everytown) want you to be thinking about. They want the 560 protests where armed individuals were merely present to be the number you associate with the violent suppression of 1A rights, despite the actual, objective, provable occurrences (which are criminal by the way), being a fraction of a fraction of that number if any such event could be accurately described as such.

Language matters. What is said and what is not said, merely implied, are both important.

So does the 2A threaten the 1A?

In short, only if you are unwilling to exercise the both yourself. Which is entirely the point of both amendments.

Read on [here] from the article source