# 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:** 3
**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, 3:22pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/41 "2017-08-13T15:22:35Z")
Also, I’ll once, and gently, ask that this not turn into a thread about the best strategy for responding to Nazis and other assholes. I think there are some pretty interesting questions about the conflict between first and second amendments, and I’d prefer to focus on those. ---
**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, 3:29pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/42 "2017-08-13T15:29:07Z")
To demonstrate the absurdity: in San Diego, it’s constitutional to forbid me from using a metal pipe to hold up my sign. Could I tape a sign to my AR-15 and hold that up instead, and suddenly they couldn’t stop me? Or could they only stop me if I left the sign on the AR-15, and as soon as I pulled the sign off, I could carry the AR-15 without problem? ---
**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, 3:33pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/43 "2017-08-13T15:33:31Z")
> [@China\_Guy](#): > > There were no long guns, no one had body armor/pads/helmets, hands were empty (instead of holding baseball bats). IIRC, there was about a 20 minute standoff at the intersection between burly plainclothes cops, uniformed riot gear wearing police, and eventually mounted police versus a bunch of punk rocks across the street. When the mounted police lined up, there was about a 10 second warning “This is an illegal demonstration” and then charge by the mounted police. > > WTF took the police so long to get their shit together? I think the underlined answers the question. 😃 Police are a LOT more respectful of people who might fight back. Anyway, the rally was declared an “unlawful assembly”, not “unconstitutional”. My 2-¢: I could see a law requiring long guns carried in public to be [scabbarded](http://image.sportsmansguide.com/adimgs/l/2/224012_ts.jpg) ---
**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, 3:53pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/44 "2017-08-13T15:53:22Z")
> [@Lumpy](#): > > 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: > .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. _Presser v. Illinois_, an 1886 decision, held that the Second Amendment limited only the power of Congress and the national government to control firearms, not the power of the state. This view was overruled by _McDonald v Chicago_. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 13, 2017, 3:55pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/45 "2017-08-13T15:55:00Z")
> [@Bricker](#): > > 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. Thanks for your explanations, **Bricker**. I have a question, though. Why would someone carrying a baseball bat be more likely to be in legal trouble? What if one of them said, “I don’t have the money for a firearm, so I brought my baseball bat along, just in case I have to defend myself.” If you can bring a firearm for self-defence, why not a baseball bat? ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [August 13, 2017, 3:56pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/46 "2017-08-13T15:56:30Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Also, that guy on the left: are those spare clips in his bandolier? They are spare magazines, in mag pouches, but your description is probably close enough for a layman. ---
**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, 3:58pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/47 "2017-08-13T15:58:31Z")
> [@Left\_Hand\_of\_Dorkness](#): > > To demonstrate the absurdity: in San Diego, it’s constitutional to forbid me from using a metal pipe to hold up my sign. Could I tape a sign to my AR-15 and hold that up instead, and suddenly they couldn’t stop me? Or could they only stop me if I left the sign on the AR-15, and as soon as I pulled the sign off, I could carry the AR-15 without problem? One difference is that there is no constitutional amendment addressing the carrying of metal pipe. So restrictions on metal pipes need only meet a rational basis test. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [August 13, 2017, 4:00pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/48 "2017-08-13T16:00:33Z")
> [@Left\_Hand\_of\_Dorkness](#): > > [This is relevant, I think.](https://www.aclusandiego.org/protestrights/) > > 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? This may stem from the fact that most of the laws in CA regarding arms derive from pre-Heller. CA bans billys, clubs, ASPs, etc. in general, so the restriction of stakes and other type items seems consistent with that. Open carry of long guns is also generally prohibited in San Diego, and all of CA. Much of the arguments in the 2nd amendment realm have to do with firearms. Stun guns, knives, nunchuks, clubs, swords, etc. have a sparser legal background. Perhaps carrying a torch could be seen as violative of [Going Armed to the Terror of the People](https://nccriminallaw.sog.unc.edu/going-armed-to-the-terror-of-the-people/). In this way, a torch is more unusual than a firearm. I can’t seem to locate the law regarding brandishing in North Carolina, but I’d say the previous image of carrying a long arm in both hands in low ready position could qualify. ---
**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, 4:04pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/49 "2017-08-13T16:04:05Z")
> [@Northern\_Piper](#): > > Thanks for your explanations, **Bricker**. I have a question, though. Why would someone carrying a baseball bat be more likely to be in legal trouble? What if one of them said, “I don’t have the money for a firearm, so I brought my baseball bat along, just in case I have to defend myself.” > > If you can bring a firearm for self-defence, why not a baseball bat? Generally because while the Second Amendment’s language is widely recognized as applying to firearms, it doesn’t really address baseball bats. That’s not to say that someone could not ultimately defend his bat-toting ways, but merely that police can readily say that someone gripping a bat during a protest is wielding a weapon for use, as opposed to exercising his right to bear arms. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [August 13, 2017, 4:05pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/50 "2017-08-13T16:05:41Z")
> [@Bricker](#): > > 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.” During the portland protests a month or so back, they banned all weapons, not just guns, but also homemade weapons or other items that could be used as a weapon. Was that an unconstitutional ban? If so, I am surprised that it was not fought along with the fight to keep the white supremacists rally in its original location. If not, then why would you not be able to put a similar ban on weapons at other rallies? You don’t just call up your buddies and show up to do a rally, you have to get permits from the city. Would the permitting process be where the city would decide what was banned, or is that more of a police matter? ---
**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, 4:05pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/51 "2017-08-13T16:05:44Z")
> [@Bricker](#): > > One difference is that there is no constitutional amendment addressing the carrying of metal pipe. > > So restrictions on metal pipes need only meet a rational basis test. How is a metal pipe not an arm? If I put a spearhead on the end of it, would it suddenly become constitutionally protected? Also, it seems that the entire rational basis would be the potential for using the pipe as an arm. Would that not implicate the second amendment? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [August 13, 2017, 4:22pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/52 "2017-08-13T16:22:30Z")
> [@k9bfriender](#): > > During the portland protests a month or so back, they banned all weapons, not just guns, but also homemade weapons or other items that could be used as a weapon. I wasn’t aware. Do you have more info on that? ---
**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, 4:24pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/53 "2017-08-13T16:24:28Z")
> [@k9bfriender](#): > > During the portland protests a month or so back, they banned all weapons, not just guns, but also homemade weapons or other items that could be used as a weapon. > > Was that an unconstitutional ban? I don’t know. But if Portland permits open carry of firearms, then banning them for one protest based on the message of that protest is likely unconstitutional. ---
**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, 4:32pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/54 "2017-08-13T16:32:08Z")
> [@Bricker](#): > > I don’t know. > > But if Portland permits open carry of firearms, then banning them for one protest based on the message of that protest is likely unconstitutional. What if it’s not a content-based ban, but a gathering-based ban? That is, they’re saying, “Peaceable assembly is defined as an unarmed assembly.” That seems to be the rational basis of San Diego’s ban. ---
**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, 4:34pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/55 "2017-08-13T16:34:32Z")
> [@Left\_Hand\_of\_Dorkness](#): > > How is a metal pipe not an arm? If I put a spearhead on the end of it, would it suddenly become constitutionally protected? > > Also, it seems that the entire rational basis would be the potential for using the pipe as an arm. Would that not implicate the second amendment? Whether the Second Amendment protects non-firearms carried outside the home for purposes of self-defense is not a settled question post-Heller. I read a case last year out of New Jersey is which a machete carried at home was lawful, per the Second Amendment, for the purposes of self-defense. But in Virginia, the state’s laws regarding the open carry of handguns and long arms are explicit in permitting both. A metal pipe carried during a protest might indeed qualify as an “arm,” under the Second Amendment or the Virginia constitution, as a defense at trial, but the police would have had ample room to claim otherwise in order to make an arrest. Not so with firearms, for which the contours of open carry are firmly established. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [August 13, 2017, 4:36pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/56 "2017-08-13T16:36:03Z")
> [@Bone](#): > > I wasn’t aware. Do you have more info on that? Not a whole lot, just news reports. It was more informative at the time that it was happening. But [here](https://www.washingtonpost.com/news/morning-mix/wp/2017/06/05/in-portland-images-of-knives-brass-knuckles-bricks-show-viciousness-of-protests/?utm_term=.95b908da743a) is an article showing all the weapons confiscated from the protestors. Most of which were taken before they were actually used as weapons. ---
**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, 4:40pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/57 "2017-08-13T16:40:50Z")
> [@Left\_Hand\_of\_Dorkness](#): > > What if it’s not a content-based ban, but a gathering-based ban? That is, they’re saying, “Peaceable assembly is defined as an unarmed assembly.” > > That seems to be the rational basis of San Diego’s ban. A law like that would probably not survive constitutional attack. That’s just my opinion, though, and not based on research. But the local gun club meetings are almost self-evidently protected by the right of free assembly, and equally evidently they are armed; the arming is integral to their intended political activity and message. That transforms the requisite test from “rational basis” to “strict scrutiny.” ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [August 13, 2017, 4:52pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/58 "2017-08-13T16:52:03Z")
“Brandish” has been used a few times but it’s not yet clear to me if that is a defined legal term. ---
**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, 5:10pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/59 "2017-08-13T17:10:23Z")
> [@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. I could not agree more. I do not think (although I cannot prove) that the White Supremacist protesters were mainly interested in protesting. I think they were real-life trolls, looking to stir up a response. And that’s more or less what happened. Had the rest of “us” taken a DNFTT attitude, these guys would have actually been just a bunch of losers carrying tiki torches. As it is, they got the attention they were looking for. ---
**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, 5:29pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/60 "2017-08-13T17:29:01Z")
> [@Left\_Hand\_of\_Dorkness](#): > > 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? [Tiki torches weigh about a pound](https://www.amazon.com/Bamboo-Torch-Tropical-Garden-Outdoor/dp/B0074PUPCC/ref=sr_1_7?s=lamps-light&ie=UTF8&qid=1502644677&sr=1-7&keywords=tiki+torch), and do no not typically have metal containers holding the liquid. Even full of liquid, they can easily weigh less than a protest sign. A tiki torch that is set to burn for a couple hours is going to be about as heavy and as dangerous as a candle, set into some kid of container. Unless you are going to ban [candles like this (or the real thing in the same setting)](https://www.amazon.com/Battery-Operated-Flameless-Lanterns-Outdoor/dp/B01AURP84K/ref=sr_1_19?s=hi&ie=UTF8&qid=1502645196&sr=1-19&keywords=outdoor+candles), you’re going to have trouble banning tiki torches. > [@](#): > > The line there is pretty bright, IMO: only one of these items is easily used to inflict injury on someone else. It’s only a bright line if you’re unwilling to be imaginative about how to get around such a law. [Previous page](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493.md?page=2) [Next page](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493.md?page=4)