# When the first and second amendment collide **URL:** \ **Category:** Great Debates\ **Created:** [August 13, 2017, 12:24am UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493 "2017-08-13T00:24:01Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [August 13, 2017, 1:39pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/21 "2017-08-13T13:39:45Z")
I think that’s fair. A mass demonstration with arms is known as an army, or at least a militia. I am fine with some individuals choosing to carry. I don’t think a general ban on weapons at protests is a great idea. But if most or all of a group of “protesters” is armed they probably aren’t out to just protest. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 13, 2017, 1:44pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/22 "2017-08-13T13:44:56Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Has the law ever dealt with whether carrying weaponry in a large assembly constitutes imminent, clear, and present danger? It seems to me straightforward to say that peaceable assembly must exclude open carrying of equipment of violence, and that the first amendment is in no way impacted by forbidding mass gatherings in which the tools of violence, whether torches or semiautomatics, are carried. As long as the conduct is legal – that is, as long as the carry of the weaponry in question is otherwise legal – I’m not aware of any statute or case law holding that the simple carrying of weapons transforms a peaceable assembly to one of imminent, clear, and present danger. So no: that’s not that law. Imminent, clear, and present danger is imminent, not speculative. “They might start using their weapons,” is no more a justification for “They might start throwing bricks,” or “They might start breaking windows.” That’s the law, as is. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 13, 2017, 1:49pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/23 "2017-08-13T13:49:02Z")
> [@asahi](#): > > The ideas that white nationalists represent are inherently violent ideas. It’s a bad idea to allow people with violent thoughts to parade around and simultaneously carry weaponry for purposes of “self defense”. If they really believe so strongly that they constitute a valid form of speech that stands on its own and that they’re simply and proposing non-violent evolution, then they ought not to be carrying weapons. Nazis don’t get to promote violence through their rhetoric and then claim self-defense when people pick up on that threat and decide to confront it. Yes, they do. Under the law as it stands, “promoting violence through rhetoric,” is protected First Amendment conduct. If “decide to confront it,” means making the first overt violent action, then whoever does so is the one who loses the protection of the First Amendment and the one against whom the violence is levied is entitled to claim self-defense. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 13, 2017, 1:51pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/24 "2017-08-13T13:51:29Z")
> [@igor\_frankensteen](#): > > ``` > Even that wouldn't change the fact that "protesting" while armed, is inherently a form of illegal coercion. > > ``` Not an accurate statement of the law as it stands right now. Perhaps you meant to say, “Even that wouldn’t change my opinion that ‘protesting’ while armed, is inherently a form of illegal coercion.” ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [August 13, 2017, 1:53pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/25 "2017-08-13T13:53:42Z")
> [@Bricker](#): > > As long as the conduct is legal – that is, as long as the carry of the weaponry in question is otherwise legal – I’m not aware of any statute or case law holding that the simple carrying of weapons transforms a peaceable assembly to one of imminent, clear, and present danger. Two things: 1. Has this ever been challenged? 2. “Simple carrying” is an interesting phrasing. I know vaguely that there are laws about brandishing weapons. Many of the pictures from Friday night and Saturday look to my untrained eye like brandishing; when hundreds of people carrying lit torches held high surround a group of their political opponents, it’s hard not to see that as brandishment, for example. I do think a distinction between concealed carry and holding a semiautomatic rifle in both hands, or holding a club in one hand and a shield in the other, is significant, but I don’t know how the law works. I appreciate your explanation of the law as it currently stands, and am seeking clarification on these issues. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [August 13, 2017, 1:57pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/26 "2017-08-13T13:57:06Z")
The law is the way the law is probably because we haven’t had an armed band march in awhile. I suspect if this became a new normal that laws would be passed and they would probably be constitutional. ---
**Author:** ![China\_Guy](https://avatars.discourse-cdn.com/v4/letter/c/779978/32.png) [@China\_Guy](https://boards.straightdope.com/u/China_Guy)\ **Post date:** [August 13, 2017, 2:06pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/27 "2017-08-13T14:06:57Z")
Bricker - appreciate as always the strict legal analysis you bring as opposed to what I \*think \*is common sense. Anyone with a non youtube (blocked in China, where I am currently on a biz trip) link to what “appears to be hundreds of people carrying lit torches held high surround a group of their political opponents.” ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [August 13, 2017, 2:19pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/28 "2017-08-13T14:19:28Z")
> [@Bricker](#): > > Yes, they do. Under the law as it stands, “promoting violence through rhetoric,” is protected First Amendment conduct. > > If “decide to confront it,” means making the first overt violent action, then whoever does so is the one who loses the protection of the First Amendment and the one against whom the violence is levied is entitled to claim self-defense. I understand that this is what the law as it stands says, and I don’t disagree with your interpretation of the law. I guess I am going beyond the law and arguing that either the law has been interpreted incorrectly by the courts, which is not likely, or that the laws - perhaps the Constitution itself - should somehow be changed to reflect a newer, more advanced America. Other countries ban this sort of “speech” and they are no more on a slippery slope toward fascism than we are - in fact we are much closer to fascism than European countries that outright criminalize such speech and forms of protest. What this moment proves is that protecting free speech to the extreme is no safeguard against fascism; fascism is an ideology and it takes a citizenry of people with the right set of values to defend themselves against tyranny. Free speech, freedom of expression by itself is nothing without people who have good values. And although there are many American ideas and values that are fundamentally good, unfortunately, historically speaking, America is a society that was founded on race-based inequality, and we haven’t entirely evolved from that time and place. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [August 13, 2017, 2:21pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/29 "2017-08-13T14:21:00Z")
> [@China\_Guy](#): > > Anyone with a non youtube (blocked in China, where I am currently on a biz trip) link to what “appears to be hundreds of people carrying lit torches held high surround a group of their political opponents.” [Here](http://www.cnn.com/2017/08/12/us/charlottesville-white-nationalists-rally/index.html); scroll down to “White nationalists wield torches” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 13, 2017, 2:25pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/30 "2017-08-13T14:25:31Z")
Hopefully clear already, but just in case: I am discussing my best understanding of the law as it stands right now, not my personal approval of the law and certainly not my personal opinion regarding the demonstrators at issue here. I think the neo-Nazi and white supremacist movements are despicable. > [@Left\_Hand\_of\_Dorkness](#): > > Two things: > > 1. Has this ever been challenged? Not so far as I’m aware, although I have not undertaken extensive research. There’s almost certainly no _successful_ challenge (that is, no appellate precedent) holdimg otherwise. > [@](#): > > 1. “Simple carrying” is an interesting phrasing. I know vaguely that there are laws about brandishing weapons. Many of the pictures from Friday night and Saturday look to my untrained eye like brandishing; when hundreds of people carrying lit torches held high surround a group of their political opponents, it’s hard not to see that as brandishment, for example. > > I do think a distinction between concealed carry and holding a semiautomatic rifle in both hands, or holding a club in one hand and a shield in the other, is significant, but I don’t know how the law works. > > I appreciate your explanation of the law as it currently stands, and am seeking clarification on these issues. This is a great point. I was focusing more on the legal carry of firearms, and frankly I don’t know about the torches, which appeared to me to be the light, faux-bamboo tiki torches that Home Depot sells. But assuming that the carrying of a lit torch is otherwise legal, I don’t see much that would make that “brandishing,” in the same way that the term would be applied to a firearm. On the other hand, unless the protesters were on their way to an all-star game, the baseball bats would, I think, be the weakest link. Holstered pistols and lit torches are both clearly defensible. In my opinion, police that declared the assembly to be a rout based on the bats would have at least an arguable defense. That doesn’t mean charges against the marchers would survive trial, conviction, and appeal. But it does mean the police would have had grounds to stop the event. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 13, 2017, 2:31pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/31 "2017-08-13T14:31:46Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Has the law ever dealt with whether carrying weaponry in a large assembly constitutes imminent, clear, and present danger? It seems to me straightforward to say that peaceable assembly must exclude open carrying of equipment of violence, and that the first amendment is in no way impacted by forbidding mass gatherings in which the tools of violence, whether torches or semiautomatics, are carried. What about candles? Is a candlelight vigil OK, but tiki torches are not? I don’t think the line is as bright as you seem to imply. If there is an issue of public safety, and fire codes are violated, then sure. Otherwise, it’s the content of the speech that is being single out, not the implements accompanying the speech. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 13, 2017, 2:37pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/32 "2017-08-13T14:37:52Z")
> [@asahi](#): > > I understand that this is what the law as it stands says, and I don’t disagree with your interpretation of the law. I guess I am going beyond the law and arguing that either the law has been interpreted incorrectly by the courts, which is not likely, or that the laws - perhaps the Constitution itself - should somehow be changed to reflect a newer, more advanced America. Other countries ban this sort of “speech” and they are no more on a slippery slope toward fascism than we are - in fact we are much closer to fascism than European countries that outright criminalize such speech and forms of protest. What this moment proves is that protecting free speech to the extreme is no safeguard against fascism; fascism is an ideology and it takes a citizenry of people with the right set of values to defend themselves against tyranny. Free speech, freedom of expression by itself is nothing without people who have good values. And although there are many American ideas and values that are fundamentally good, unfortunately, historically speaking, America is a society that was founded on race-based inequality, and we haven’t entirely evolved from that time and place. I hear you, but I can’t help thinking that we give these assholes power by responding. They advocate tyranny, but who are they? A bunch of bitter, hate-filled malcontents whose lives have given them nothing, so that they stare enviously that those who have opportunity and success and tell each other that these successes could belong to them, if not for The Other, the Foreigner, who has taken it away. In my ideal world, they collect their torches and march around, and no one comes. No news cameras, no counter protesters, nothing but a single police car, parked to the side with two uninterested officers. That, in my opinion, is what the aspirational reaction of a “citizenry of people with the right set of values,” would look like. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [August 13, 2017, 2:47pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/33 "2017-08-13T14:47:12Z")
> [@Bricker](#): > > I hear you, but I can’t help thinking that we give these assholes power by responding. They advocate tyranny, but who are they? A bunch of bitter, hate-filled malcontents whose lives have given them nothing, so that they stare enviously that those who have opportunity and success and tell each other that these successes could belong to them, if not for The Other, the Foreigner, who has taken it away. > > In my ideal world, they collect their torches and march around, and no one comes. No news cameras, no counter protesters, nothing but a single police car, parked to the side with two uninterested officers. > > That, in my opinion, is what the aspirational reaction of a “citizenry of people with the right set of values,” would look like. But in your ideal world, no challenge to white supremacists might embolden them, leading to more and larger gatherings. I think the law allows a group of protesters to come armed with very powerful weaponry, and the law allows a group of counter-protesters to come to the same place armed with very powerful weaponry. It seems to me that the law allows a circumstance that could very easily result in hundreds dead. Should we consider altering those laws, or is this possibility (and maybe inevitability) just one of the costs of freedom? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 13, 2017, 2:53pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/34 "2017-08-13T14:53:03Z")
> [@John\_Mace](#): > > Otherwise, it’s the content of the speech that is being single out, not the implements accompanying the speech. This bears repeating. The First Amendment stands for the proposition that the restrictions imposed by the government must be content-neutral. I think a safety law forbidding open carry of flames, or maybe open carry of flames from oil, might be constitutional, but if that law was invoked only when the carrying was done by neo-Nazis would be constitutionally infirm. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 13, 2017, 3:07pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/35 "2017-08-13T15:07:29Z")
> [@iiandyiiii](#): > > But in your ideal world, no challenge to white supremacists might embolden them, leading to more and larger gatherings. If there are truly larger numbers of people inclined to this philosophy such that, even with no large media attention they gravitate to the gatherings. . . then, while I’m dismayed, I’m also not willing to abandon the view that they have the right to gather and protest. But I don’t for a moment believe they are not “emboldened.” For them, this violence is a godsend. It’s free publicity. Your idea that ignoring them might “embolden” them is, in my view, utterly wrong. They don’t fail to march now in large numbers because they are cowed. They fail to march in large numbers because they don’t HAVE large numbers. Their dream is to showcase their putrid flags and hateful slogans for the six o’clock news; that’s publicity they can’t buy. > [@](#): > > I think the law allows a group of protesters to come armed with very powerful weaponry, and the law allows a group of counter-protesters to come to the same place armed with very powerful weaponry. It seems to me that the law allows a circumstance that could very easily result in hundreds dead. Should we consider altering those laws, or is this possibility (and maybe inevitability) just one of the costs of freedom? The law also allows the police to set reasonable, content-neutral restrictions that separate volatile groups for safety concerns. That tool should be used to minimize the risk of direct clashes between highly motivated groups. But in the end, yes, in my view the cost of freedom includes allowing these kinds of demonstrations. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [August 13, 2017, 3:11pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/36 "2017-08-13T15:11:15Z")
Still catching up on current events, may have to modify this post, but: I have no idea what it means to declare a gathering “unconstitutional”. The right to keep and bear arms doesn’t preclude laws against rioting and other forms of unlawful assembly, provided that those laws meet strict scrutiny. I would add that most states have laws, upheld by the Supreme Court in _Presser v. Illinois_, against “armed association”- my home state of Minnesota’s law is typical: > [@](#): > > ARMED ASSOCIATION. > It shall not be lawful for any body of persons, other than the National Guard, troops of the United States and, with the consent of the governor, sons and daughters of veterans and cadets of educational institutions where military science is taught, to associate themselves together as a military company with arms, .Exactly when you’re not just a bunch of guys with guns and when your presenting yourself as a “military company”, I leave to the lawyers. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [August 13, 2017, 3:15pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/37 "2017-08-13T15:15:12Z")
> [@John\_Mace](#): > > What about candles? Is a candlelight vigil OK, but tiki torches are not? > > I don’t think the line is as bright as you seem to imply. If there is an issue of public safety, and fire codes are violated, then sure. Otherwise, it’s the content of the speech that is being single out, not the implements accompanying the speech. Can you see the difference between carrying an 8 oz, 8-inch wax cylinder, and carrying a 3’ long pole to the end of which is attached a metal cylinder weighing a couple of pounds and full of flammable liquid? The line there is pretty bright, IMO: only one of these items is easily used to inflict injury on someone else. > [@Bricker](#): > > This is a great point. I was focusing more on the legal carry of firearms > … > On the other hand, unless the protesters were on their way to an all-star game, the baseball bats would, I think, be the weakest link. Holstered pistols and lit torches are both clearly defensible. In my opinion, police that declared the assembly to be a rout based on the bats would have at least an arguable defense. Holstered pistols are one thing. [Semi-automatic rifles held in both hands with the finger an inch away from the trigger might be another](http://www.mercurynews.com/2017/08/12/san-jose-family-witnesses-violent-charlottesville-white-nationalist-demonstrations/). Also, that guy on the left: are those spare clips in his bandolier? ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [August 13, 2017, 3:17pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/38 "2017-08-13T15:17:09Z")
> [@Bricker](#): > > If there are truly larger numbers of people inclined to this philosophy such that, even with no large media attention they gravitate to the gatherings. . . then, while I’m dismayed, I’m also not willing to abandon the view that they have the right to gather and protest. I’m not either, but I think there are a large number (I’m not talking 50% of America, but maybe something like 3-5%, which would add up to over ten million) of essentially de-activated white supremacists out there, who might potentially be “gettable” by the white supremacists. I think this is a serious concern for national security, and warrants a national response, even if that response isn’t to ban such gatherings. > [@](#): > > But I don’t for a moment believe they are not “emboldened.” For them, this violence is a godsend. It’s free publicity. Your idea that ignoring them might “embolden” them is, in my view, utterly wrong. They don’t fail to march now in large numbers because they are cowed. They fail to march in large numbers because they don’t HAVE large numbers. Their dream is to showcase their putrid flags and hateful slogans for the six o’clock news; that’s publicity they can’t buy. I think this is a pipe dream – a crowd of nazis is news, whether we like it or not. I think we’d all like to be informed if hundreds or thousands of nazis are coming into our neighborhood, and we’d want to know what actually happened. And I’d want to make sure that they get the message that their ideas are not welcome here. The only way this would cease to be news would be if it were so common to be mundane. In a way, it’s probably good that it’s still newsworthy, only because the alternative is so much worse. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [August 13, 2017, 3:21pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/39 "2017-08-13T15:21:03Z")
[This is relevant, I think.](https://www.aclusandiego.org/protestrights/) > [@San Diego ACLU](#): > > Q: Can police restrict the size or type of signs or how they are carried or displayed? > > A: Yes, but only to the extent necessary to protect safety without excessively impairing the right to display signs. For example, as San Diego does, a city may prohibit the use of metal stakes, clubs, and pipes at rallies, parades, or demonstrations, and it may require that any wooden stakes used for signs must be 1/4 inch or less in thickness and 2 inches or less in width. But a city may not entirely prohibit the carrying of signs attached to any wooden or plastic handles. It seems very likely that these wooden stakes are regulated because of their potential to be used as weapons. Does the law seriously allow this sort of regulation, but not the regulation of outright weapons, at rallies? ---
**Author:** ![Spice\_Weasel](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spice_weasel/32/5435_2.png) [@Spice\_Weasel](https://boards.straightdope.com/u/Spice_Weasel)\ **Post date:** [August 13, 2017, 3:22pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/40 "2017-08-13T15:22:25Z")
I just want to thank people for the civil discussion of this contentious issue because I am learning something by reading it. [Previous page](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493.md?page=1) [Next page](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493.md?page=3)