The Bind of 1st and 2nd Amendments

Hi Joel,

Emeritus Supreme Court Justice John Paul Stevens’ words in the New York Times today are deeply encouraging to me. His call for a repeal of the 2nd Amendment feels radical, but he situates his argument in history: Only recently have we seen a call for totally unlimited access to weapons. For most of our history, we actually understood that the Second Amendment was about militias, not individual gun ownership. The rise in gun fetishism parallels a rise in hate, and I think they come from the same source–deep selfishness that feeds into and is fed by fear.

I also think we have a conflict between the First and Second Amendments. And we are all better off, I think, if the First wins.

I’ve asked before what happens with the First Amendment and the Second come into conflict, focusing on the ways that gun fetishists intimidate people into silence.  I want to raise it today in a different context: What do we do about potential mass shooters who have both the right to own military-grade weapons and the right to make threats online?

Not everyone who opens fire makes threats online first, of course, but many do. However, even when we see a threat, we have to protect the First Amendment rights of people to say nasty things online. To rise to the level of an imminent threat, a person has to state a plan of action that is reasonable. Saying, “I wish that…” or “Wouldn’t be it be great if someone…” isn’t enough. You have to demonstrate a plan, which means that there is a target, a time, and a method, and the plan has to be reasonable to accomplish. Me saying that I’d like to drop a nuke on a  Kim Jong-un isn’t an imminent threat because I don’t have access to either nuclear weapons or the North Korean dictator. Me saying the same thing about the local high school isn’t a threat, either, because I don’t have a nuke. Me saying making threats about using guns at a high school isn’t an imminent threat if that high school isn’t near me, because I couldn’t achieve the plan from a distance. Even if such speech names people specifically, if it simply “crude political hyperbole,” it’s not a threat. Even if an online threat names a specific person and names a specific plan, it may be protected if there is no intent to act on it, no matter how scared you make the target. (The Supreme Court made this clear in 2014, when it reversed a ruling against a man who posted some song lyrics he wrote about murdering his ex-wife, killing kindergartners, and violating the PFA order she’d taken out against him by shooting her dead. Sure, she was scared, said the court, but he didn’t intend on acting on his words.) You can start to imagine all the ways that we can say truly frightening things and still be within the range of protected speech.

That is to say, there is a young man in your town right now who legally has a gun and can legally say that he admires school shooters and can legally cheer on school shootings and can legally name who classes of people–girls, teachers, police officers, African Americans, Jews–he wishes would die in one, provided he doesn’t name individuals by name and he doesn’t announce a time or place for it to happen.  The school can flag him as a security risk, but these behaviors are all part of his Constitutionally-protected rights. (I’m not arguing that this is the right way to handle free speech online. I’m just saying this has been how we’ve handled it most of the time so far.)

In the days after a mass shooting, people who could reasonably bear some of the blame–the FBI, for not following up; the parents, for leaving the gun available; the teachers, who failed to report; the friends who didn’t “see something, say something”; the social media platforms that allow violent words to remain posted–but many of them simply feel that their hands are tied. In most cases, they can’t legally take the gun away from an 18-year-old. A college can’t (or says it can’t) legally investigate rape threats against a professor if those threats don’t include a plan of action. The University of Kentucky gives the name of a student who reported a peer who threatened to kill their entire class to the accused (who has been arrested), because… uh… school policy.


Above, a photograph by Beth Meier shows a man counterprotesting schoolchildren participating in Indianapolis’ March for Our Lives this past weekend. He is open carrying a rifle while speaking to a woman. Behind him, a man holds a sign reminding us that “Just because you can doesn’t mean you should!” with an arrow pointing to the armed man, calling him “(asshole)”.  Those exercising their free speech and right to assemble are unable to distinguish whether he means harm until he opens fire. That threat absolutely diminishes the right to speak freely. 

Mass shootings have to be addressed in practical ways, with little tweaks as well as major overhauls to our laws. But it could be that this is also a time to review some bigger conversations about what a right does and should mean. I am so glad that Stevens is starting that conversations. Our founders never saw the Constitution as permanent; that’s why they gave us the process of amending it. Even if we don’t go that deep into our law, we can rethink whether our current system–which centers the right of the individual over any dignity of those harmed by their Constitutional actions–is one we are satisified with.


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