# 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:** 4
**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, 5:32pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/61 "2017-08-13T17:32:07Z")
> [@Ruken](#): > > “Brandish” has been used a few times but it’s not yet clear to me if that is a defined legal term. It’s a word used in Virginia law. Va Code § 18.2-282.1, for example, forbids any person from pointing, holding, or brandishing a machete or any weapon, with an exposed blade 12 inches or longer, with the intent of intimidating any person or group of persons and in a manner that reasonably demonstrates that intent. Are you looking for a more specific definition? ---
**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, 5:36pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/62 "2017-08-13T17:36:03Z")
> [@John\_Mace](#): > > [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. > It’s only a bright line if you’re unwilling to be imaginative about how to get around such a law. See that cylinder at the top? That is made of metal, and can be filled with oil. That’s how you are supposed to use them. It may only weigh about a pound empty, but you can add at least a pint of fuel to it, which is close to another pound. There could be benefits to banning candles like that as well, as you could get a good swing with one of those. But, they are not on long poles, which gives you more reach and force, and they are not full of oil (and you could put stuff that is more volatile in it than lamp oil if you are being nefarious, just gasoline would make it much more dangerous). You could really hurt someone with a tiki torch, both from the blunt force and the fire, in a was that you couldn’t do with candles, even if you allow those candles. ---
**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, 5:37pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/63 "2017-08-13T17:37:06Z")
> [@Bricker](#): > > It’s a word used in Virginia law. Va Code § 18.2-282.1, for example, forbids any person from pointing, holding, or brandishing a machete or any weapon, with an exposed blade 12 inches or longer, with the intent of intimidating any person or group of persons and in a manner that reasonably demonstrates that intent. > > Are you looking for a more specific definition? Is brandishing not related to firearm use as well? ---
**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, 5:55pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/64 "2017-08-13T17:55:37Z")
> [@k9bfriender](#): > > See that cylinder at the top? That is made of metal, and can be filled with oil. That’s how you are supposed to use them. The container is “transparent”. Metals are not transparent. There is a metal protector on the top that is like a small, inverted funnel and is about as dangerous as a tin of altoids. > [@](#): > > Features: > > - Full-sized 3 Feet Height. > - Exotic bamboo design. > - Clear fuel canister. > - Weather resistant metal frame guard > - Perfect as a gift. > - Measures: 3 Feet in length, circumference: 2", small rim hole 0.90" Emphasis added. I have these tiki torches myself. I don’t use them for protests, but have used them for parties. The fuel containers are plastic. ---
**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, 6:15pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/65 "2017-08-13T18:15:01Z")
> [@John\_Mace](#): > > The container is “transparent”. Metals are not transparent. There is a metal protector on the top that is like a small, inverted funnel and is about as dangerous as a tin of altoids. > > Emphasis added. > > I have these tiki torches myself. I don’t use them for protests, but have used them for parties. The fuel containers are plastic. The picture does not match the description. The picture in your link is very clearly metal canisters at the end, and certainly not transparent. I used to have a bunch of these types of torches (can usually pick them up cheaper than that too), used them around the backyard for little shindigs, everyone I’ve ever bought has had a metal top, as pictured in the link you provided. So, we have established that there are tiki torches with metal canisters on them, and there are ones with plastic containers. It is hard to tell for sure from the photos, but the torches that they were carrying looked like the metal topped containers to me. ---
**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, 6:26pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/66 "2017-08-13T18:26:22Z")
I looked up Tiki torches before I posted, and the ones I found were nearly five pounds and nearly 5’ long. I don’t know how long the ones in question were, but the idea that they’re just as weaponizable as a candle is ludicrous, and that’s the last I’ll say on the topic. I’d be fine with limiting items carried during protests in the way San Diego does: if you want to carry a long wooden object, keep it to less than 1/4" thick and 2" wide, and if your Tiki torch complies, god bless. ---
**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, 6:33pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/67 "2017-08-13T18:33:18Z")
> [@k9bfriender](#): > > 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. I don’t think your reading of that article is accurate. Nothing there says that various weapons were banned. The article seems to focus on various weapons and makeshift items confiscated in the course of making arrests for other actions, like throwing bricks, disorderly, etc. ---
**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, 6:45pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/68 "2017-08-13T18:45:40Z")
> [@Bricker](#): > > 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. But why can a baseball bat not be a type of “arm”? ---
**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, 6:48pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/69 "2017-08-13T18:48:47Z")
> [@Northern\_Piper](#): > > But why can a baseball bat not be a type of “arm”? I don’t say that it can’t – just that no court has (so far as I am aware) found Second Amendment protections for baseball bats. ---
**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, 7:01pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/70 "2017-08-13T19:01:11Z")
> [@Bricker](#): > > I don’t say that it can’t – just that no court has (so far as I am aware) found Second Amendment protections for baseball bats. Connecticut State Supreme Court found [2nd amendment protection for police batons.](http://jud.ct.gov/external/supapp/Cases/AROcr/CR315/315CR113.pdf) The item was really an ASP by description, but the court ruling would also cover dirks. Here, the [CA court upheld conviction for possession of a bat](http://www.leagle.com/decision/In%20CACO%2020130328029/PEOPLE%20v.%20DAVIS), construed as a billy which is illegal in CA. They declined to address the 2nd amendment implications because the bat was possessed outside the home, and the defendant stupidly admitted it was a billy used for protection, and didn’t properly raise his claims at trial. These are just background since they don’t address the question directly. ---
**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, 7:33pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/71 "2017-08-13T19:33:45Z")
> [@k9bfriender](#): > > Is brandishing not related to firearm use as well? Yes, the general concept is the same. With firearms, however, the general rule is that lawful carry cannot itself constitute brandishing; case law requires holding the weapon and exhibiting it, exposing it, in “a shameless or aggressive manner.” It’s possible to lawfully carry a firearm and still “brandish it,” but the evidence to sustain that conviction would have to show something specific threat. "How’d you like me to use this?’ for example, while gesturing with a carried gun, is brandishing even if not pointed at the person being addressed. ---
**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, 9:38pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/72 "2017-08-13T21:38:36Z")
> [@Bone](#): > > I don’t think your reading of that article is accurate. Nothing there says that various weapons were banned. The article seems to focus on various weapons and makeshift items confiscated in the course of making arrests for other actions, like throwing bricks, disorderly, etc. Yeah, like I said, that’s not the best article, and the current protest make past ones harder to google. But, in the lead up to the protest, the police had banned weapons, and were searching people entering for any weapons. Much of this was on the broadcast news at the time too, as well as a twitter feed from the police department as they confiscated weapons. I’ll try to see if I can find stuff on the lead up to the protest, or the twitter feed from the PD warning people not to bring weapons and that they would be confiscated, but not until tomorrow, when I have some more time, unless someone beats me to it. ---
**Author:** ![Martini\_Enfield](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/martini_enfield/32/11123_2.png) [@Martini\_Enfield](https://boards.straightdope.com/u/Martini_Enfield)\ **Post date:** [August 13, 2017, 10:17pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/73 "2017-08-13T22:17:16Z")
It’s an interesting situation and personally I think it’s a pretty good example of “Just because you can, doesn’t mean you should” Even if you live in a state where openly carrying a longarm in public is fine, you can bet those laws were written in an era when people might be carrying a Winchester rifle or a bolt-action hunting rifle through town - not one where people dress up in camo and body armour, don the full TactiCool rig, and show up at protests armed with an AR-15 (which is essentially an military-style assault rifle, albeit semi-automatic fire only). I’d suggest showing up at a protest while dressed as an extra from a Special Forces movie is less about publicly airing one’s displeasure at something (eg a new law or policy) and more about antagonising and intimidating “the other side” into shutting the fuck up and going away. In an ideal universe I don’t think people should be carrying firearms at a protest anyway, but at the same time it should be OK for people attending a politically charged protest in the US to carry a concealed handgun (as long as it’s legal etc where they are) purely for self-defence purposes. Escalating a protest by having a bunch of humourless people with military gear (but who aren’t in the military) standing around being scary isn’t helping anyone, IMO. ---
**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, 10:35pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/74 "2017-08-13T22:35:10Z")
> [@Bone](#): > > 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. This bit was news to me, and I forgot to comment on it when I first saw it; thanks for bringing it up! I’m going to mix up the information in the cite; everything in brackets is explanatory text from later in that cite. > [@Going Armed to the Terror of the People](#): > > A person guilty of this offense > > (1) arms himself or herself with an unusual and dangerous weapon > [any gun is an unusual and dangerous weapon for purposes of this offense. . . . In State v. Lanier, 71 N.C. 288, 289 (1874), the defendant was charged with going armed to the terror of the people after riding a horse, at a canter, through a courthouse. Witnesses saw no arms of any kind. The North Carolina Supreme Court “attach[ed] no importance to the fact that the defendant had no arms” stating, “we think it may be conceded that the driving or riding without arms through a court house or a crowded street at such a rate or in such a manner as to endanger the safety of the inhabitants amounts to a breach of the peace and is an indictable offence at common law.” Id. at 290.] > > (2) for the purpose of terrifying others and > > (3) goes about on public highways > > (4) in a manner to cause terror to the people. > [The offense of affray involves fighting in public to the terror of the people. For purposes of that offense, cases hold that if members of the public experience fear, the “to the terror of the people” element is satisfied.] I wonder whether this law would pass constitutional muster if challenged. I also am not, in my very inexpert Googling, finding similar laws elsewhere. Nonetheless, this seems a very reasonable way to handle the matter, given the second element. ---
**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, 11:31pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/75 "2017-08-13T23:31:39Z")
> [@Bricker](#): > > It’s a word used in Virginia law. Va Code § 18.2-282.1, for example, forbids any person from pointing, holding, or brandishing a machete or any weapon, with an exposed blade 12 inches or longer, with the intent of intimidating any person or group of persons and in a manner that reasonably demonstrates that intent. > > Are you looking for a more specific definition? > [@Bricker](#): > > Yes, the general concept is the same. With firearms, however, the general rule is that lawful carry cannot itself constitute brandishing; case law requires holding the weapon and exhibiting it, exposing it, in “a shameless or aggressive manner.” > > It’s possible to lawfully carry a firearm and still “brandish it,” but the evidence to sustain that conviction would have to show something specific threat. "How’d you like me to use this?’ for example, while gesturing with a carried gun, is brandishing even if not pointed at the person being addressed. I was trying figure how it applied to this picture: > [@Left\_Hand\_of\_Dorkness](#): > > 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/). Holstered or slung over the shoulder is clearly not brandishing. I don’t _think_ the pictured guys would count as brandishing as described but I wouldn’t be surprised to hear someone feels differently. ---
**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, 11:51pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/76 "2017-08-13T23:51:27Z")
> [@Ruken](#): > > I don’t _think_ the pictured guys would count as brandishing as described but I wouldn’t be surprised to hear someone feels differently. In CA, I would consider that to clearly be brandishing. Brandishing is described in [CA penal code 417:](http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=417) > [@](#): > > (2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows: A misdemeanor unless in the presence of a police officer, or some other circumstances that turns it into a felony. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [August 14, 2017, 3:20pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/77 "2017-08-14T15:20:23Z")
> [@adaher](#): > > 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. I’ve been to protests where everyone was armed. Mostly protests against someone trying to pass gun control or something. I wonder what would have happened if the Bernie Bros showed up armed too? ---
**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 14, 2017, 3:32pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/78 "2017-08-14T15:32:54Z")
> [@Bone](#): > > In CA, I would consider that to clearly be brandishing. Brandishing is described in [CA penal code 417:](http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=417) > > A misdemeanor unless in the presence of a police officer, or some other circumstances that turns it into a felony. That’s a tough one because it seems very subjective. Is there any place that defines what is “rude, angry or threatening”? My sense is that the weapon would have to be pointed at someone or at least in the general direction of someone to count. Having the gun pointed at the ground seems like it would not qualify. But that’s just my sense. Is there any jurisprudence on the issue? ---
**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 14, 2017, 3:34pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/79 "2017-08-14T15:34:25Z")
> [@Bone](#): > > I don’t think your reading of that article is accurate. Nothing there says that various weapons were banned. The article seems to focus on various weapons and makeshift items confiscated in the course of making arrests for other actions, like throwing bricks, disorderly, etc. The news reports I heard were all live broadcast, so I can’t link to those. But, here is [Portland PD’s Twitter feed](https://twitter.com/PortlandPolice/status/871451406246461440) for that day. > [@](#): > > Weapons or things that can be used as weapons may be seized by police. Criminal conduct may result in arrest. > [@](#): > > REMINDER: Weapons/things that can be used as weapons may be seized by police. Guns, knives, sticks, bats, fireworks, etc. Do not bring them. That does sound like a ban to me. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [August 14, 2017, 3:35pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/80 "2017-08-14T15:35:44Z")
> [@Left\_Hand\_of\_Dorkness](#): > > 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. Here is an article on Virginia brandishing laws. [http://firearmtrainingstore.com/about-us/blog/what-is-brandishing/](http://firearmtrainingstore.com/about-us/blog/what-is-brandishing/) I think in practice, brandishing is whatever the cops say it is. I suspect that merely being aggressive with a visible gun in your possession, you could be arrested for brandishing. [Previous page](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493.md?page=3) [Next page](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493.md?page=5)