The Second Amendment Has Become a Threat to the First – The Atlantic

The Atlantic offers an… interesting take, let us say, on the topic of the 2nd Amendment being a threat to the 1st Amendment.
“People cannot freely exercise their speech rights when they feat for their lives.” Is the crucial quote of the opening paragraph below. We post this and comment because this is a common argument, and arguably a false one.
Firstly, you are protected at these protests by the same thing that protects you the rest of the time, the law. Felony murder is felony murder. Felony assault is felony assault. If the armed protestor or counter-protester assaults, or kills, outside of the singular bound of self defense, they are guilty and will be prosecuted and imprisoned. That is however if they are found guilty through trial and due process, the same protections you would have in a use of force cast.
The risks to anyone do not change all that much at an ‘armed protest’ and realistically the concern involved shouldn’t either. Active intimidation through force of arms is illegal. An armed protester cannot intimate they will use any weapon they possess to suppress the speech and expression of the parties they disagree with, just as it is not legally permissible to beat someone with hands and feet for expressing their protest in a civil manner. The law unequivocally protects civil expression of opinion and grievance, and it can and will back you in a court.
Secondly, the protesters exercising their right to speech also have the same right to bear arms in their own defense. Just because you choose not to exercise that right or hold a belief that it should not be permitted does not divest you or them of their rights.
You do not have a right to feel safe. The conditions for feeling safe are too subjective from one individual to another and their conditions cannot be assured. You have the right to be legally safe in your person, to exercise your right of speech, and to legal redress if that right is violated. The government can give you a courtroom, they cannot give you absolute safety. Having a weapon branished against you (not merely possessed, because again you also have the right to possess and carry) or used against you is a violation of your rights and you have the additional right for the courts to solve that redress and apply the legal punishments. You also, under appropriate circumstances, possess every legal right to force to defend your life. These are rights you have too, whether you choose to exercise them or not.
I reiterate, the 2nd Amendment is not a threat to the 1st Amendment. Every legal protection favors the protester. An armed party can only legally use force if threatened with death or great bodily injury, and if the protesters offer that then they are no longer lawfully protesting and their rights as protesters end. The lawful and civil bearing of arms does not change the risk profile of the illegal assault on protesters, the illegal assault would under any circumstance be the more grievous breach of law and civil etiquette than the illegal carry of a weapon. The person dedicated to committing that breach would not be stopped. The supposition that this change in behavior provides actual protection is a false one, it does not stand up to logical accounting.
Legal protections are not physical protections, and that is the whole crux of this argument. The argument is that an illegal use of force of arms, not protected by the 2nd Amendment, is a threat to the 1st Amendment. That is true. But the blame is then placed upon the existence of the 2nd Amendment and the rights therein, not the illegal and immoral use of force which is the actual physical threat. A true physical accounting of a threat is blamed upon a false source.
The argument is additionally that, to feel safe, the 2nd Amendment rights of persons should be suppressed because they prevent free exercise of the 1st Amendment. That isn’t true, you do not possess a right to be free of risk, and even should the legal protections of a protester or demonstrator change and 2nd Amendment rights are suppressed, it does not change the actual physical risk because the actual risk is of an already illegal use of force. Ultimately you, at a 1st Amendment protected protest or otherwise, do not have the right to a life free of illegal acts against you. You do have the right to lawful redress to any and all illegal acts against you. That is what the courts can enforce.
You do not have the right to have your subjective feeling honored more than their subjective feelings, you do have the right to legal redress of any overtly hostile acts against your person during a civil demonstration, just as an armed person would have the same legal redresses against you whether you were armed or not.
Legal protections, civil protections, and actual physical protections are not the same. There is also no way to make them the same. The legal protection becoming a physical protection would rely on 100% perfect human compliance with civility, both an impossibility and a condition that would render the need for protest moot entirely for casual arbitration would then be able to solve all issues if they even arose in the first place. Utopian fallacy.
Here is the Atlantic’s take,
Thirdly, there is nothing ‘safe’ about a protest or demonstration even though you have the right. Democracy is not a safe exercise, but neither is life. You have the same rights to safety and redress shopping, getting gas, or meeting at a restaurant with friends or family.

Many Americans fervently believe that the Second Amendment protects their right to bear arms everywhere, including at public protests. Many Americans also believe that the First Amendment protects their right to speak freely and participate in political protest. What most people do not realize is that the Second Amendment has become, in recent years, a threat to the First Amendment. People cannot freely exercise their speech rights when they fear for their lives.

This is not hyperbole. Since January 2020, millions of Americans have assembled in public places to protest police brutality, systemic racism, and coronavirus protocols, among other things. A significant number of those protesters were confronted by counterprotesters visibly bearing firearms. In some of these cases, violence erupted. According to a new study by Everytown for Gun Safety and the Armed Conflict Location & Event Data Project (ACLED), one in six armed protests that took place from January 2020 through June 2021 turned violent or destructive, and one in 62 turned deadly.

These kind of data fill a void in ongoing debates about the compatibility of free speech and firearms at protest events. For example, is the phenomenon of armed protests new? Is it frequent? The open display of firearms at public protests, including long rifles and what are sometimes called “assault-style rifles,” is a relatively new phenomenon. Although many states allow firearms in public places, until recently few Americans have openly toted firearms to political demonstrations. The Everytown/ACLED study examined thousands of protests, showing a marked uptick in protests at which people were visibly armed following the police murder of George Floyd. It found that at least 560 events involved an armed protester or counterprotester. Loose state firearms laws are part of the explanation for this phenomenon. The incidence of armed protests was three times higher in states with expansive open-carry laws, the study noted.

Such research makes much clearer the implications of open carry for public safety, public protest, and constitutional democracy. Some have argued that open carry will make protests safer. In fact, tragedies were far less frequent at protests that did not involve firearms, the Everytown/ACLED research revealed: One in 37 turned violent or destructive, and only one in 2,963 unarmed gatherings turned fatal.

In short, the visible presence of firearms increases the risk of violence and death when exercising one’s First Amendment rights. The increased risk of violence from open carry is enough to have a meaningful “chilling effect” on citizens’ willingness to participate in political protests. Research thus far has focused on open display of firearms, but further study is needed to evaluate the public safety concerns that may still be present when protesters or counterprotesters bring concealed firearms to demonstrations. In addition, concealed carry may not have the same chilling effect; it’s possible that without weapons visible, protesters will not be deterred. But at the same time, merely knowing that people might be armed could keep people away from public protests.

Diana Palmer, one of the authors of this article, conducted a study on the impact of open carry of firearms on the exercise of protest rights, and confirmed what common intuition suggests but included some surprises. The study found that participants were far less likely to attend a protest, carry a sign, vocalize their views, or bring children to protests if they knew firearms would be present.

Participants were asked about their willingness to participate in protests in two groups. In the control group, firearms were not mentioned in the questions. In the experimental group, they were. The questions did not specify whether the participants were visibly carrying firearms or not. The participants in the experimental group were much less willing to participate in expressive activities than participants in the control group to whom firearms were not mentioned.

That hesitation was present regardless of respondents’ political ideology. It was experienced by gun owners and nonowners alike. Survey respondents’ explanations as to why they would refrain from participating in protests where arms are present revealed the significant chilling effects of guns at protests. Among other things, respondents indicated:

I feel like I would be antagonizing [firearms carriers] and that could lead to me being injured.

If they started shooting, I would be concerned they would target me for what I said.

I’ll let the people with the guns do the talking.

Nothing is important enough to be shot over.

Some open-carry proponents insist that they bring firearms to protests to defend themselves against potential violence or to ensure that the First Amendment rights of all participants are respected. However, the Everytown/ACLED study concluded that 77 percent of armed protests during the observed period were “driven by far-right mobilization and reactions to left-wing activism.” The study also found that 84 percent of armed protesters at Black Lives Matter protests were counterprotesters from extremist groups such as the “boogaloo boys,” the Proud Boys, and other right-wing groups. Rather than being motivated by self-defense or civil-rights concerns, the decision to carry a gun tends to follow far-right political ideology.

Whatever the motives of firearms carriers might be, the clear social perception of would-be participants is that armed protests are unsafe. That finding is crucial to understanding the potentially devastating effect that bringing guns to protests can have on the exercise of First Amendment rights.

The Supreme Court will soon decide whether there is a Second Amendment right to carry firearms and other weapons in public places, a question it has yet to weigh in on. A pending case, New York State Rifle & Pistol Association v. Bruen, involves restrictions on concealed-carry permits. To decide it, the Court will need to determine whether the Second Amendment applies outside the home. As the studies show, the answer has profound implications not just for public safety but also for constitutional democracy. As courts and legislatures consider gun regulations, they ought to bear in mind not just the physical dangers of armed protests but also the social harms associated with them. For many—perhaps an increasing number of—Americans, participation in armed public protests may simply not be worth the risk. Even if public protest survives, only those willing to risk their life, or who are inclined and able to carry weapons in defense of their own right to protest, may want to participate. Rather than serving as a democratizing means of expression, protest may become an armed contest and the exclusive preserve of the non-peaceable. Most concerning is that public protest as we know it may cease to exist at all. That would deprive Americans of participating in one of the greatest traditions of this country: expressing their views, engaging in public life, and advocating for democratic change.

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