# 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:** 7
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [August 15, 2017, 4:46pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/121 "2017-08-15T16:46:38Z")
I hasten to add that if a BLM organizer had made this statement they would have been much more likely to be prosecuted for some kind of threat. It might have eventually been dismissed for the reasons I point out, but there is a serious kind of white privilege happening when a speaker can tell the police that his buddies are going to go vigilante in an already chaotic and fraught scene unless the police step up, and the police proceed to do nothing. (They then later justify their inaction by saying they were outgunned!) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 15, 2017, 4:58pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/122 "2017-08-15T16:58:31Z")
> [@Richard\_Parker](#): > > It’s still contingent, though. If you don’t do X, I will do Y. That contingency is relevant to all three of the potentially relevant legal doctrines. > > I agree that if the threatened action were clearly unlawful, and if the contingency were sufficiently likely to occur in the near future, then you might win on showing that there is sufficient immediacy for incitement. > > The target of the statement being the police cuts against overcoming First Amendment protection, I think. For one, they are the group least likely to be intimidated. For another, it is closer to political speech–he is complaining about the refusal of public officials to do their job (in his view). > > I agree that is a reasonable reading of his remarks, but do not agree that it is the only reading. That ambiguity works in his favor under these doctrines. What’s more, it is possible to threaten violence without threatening to do anything illegal. If I tell the police I am going to march through Harlem with hate speech on my chest and then use my gun to stop the first person who tries to violently stop me, I might compel the police to take action to protect me, but I’m not threatening to do anything illegal necessarily. I agree with each analysis in the quoted portions above. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 15, 2017, 5:05pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/123 "2017-08-15T17:05:16Z")
> [@Richard\_Parker](#): > > I hasten to add that if a BLM organizer had made this statement they would have been much more likely to be prosecuted for some kind of threat. It might have eventually been dismissed for the reasons I point out, but there is a serious kind of white privilege happening when a speaker can tell the police that his buddies are going to go vigilante in an already chaotic and fraught scene unless the police step up, and the police proceed to do nothing. (They then later justify their inaction by saying they were outgunned!) Here, I don’t completely agree. I think so much depends on the local police that making any kind of assertion about what’s “much more likely,” in a racial context is much more a rhetorical claim than a sober analytical one. Police are willing to order people, black and white, to stop filming them, even when the right to film police is well-established. The fact that police routinely overstep the boundaries set by the First Amendment isn’t so much a comment about any kind of racial “privilege” as it is a comment about “qualified immunity.” ---
**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 15, 2017, 5:14pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/124 "2017-08-15T17:14:19Z")
> [@Bricker](#): > > Here, I don’t completely agree. I think so much depends on the local police that making any kind of assertion about what’s “much more likely,” in a racial context is much more a rhetorical claim than a sober analytical one. Was this always true, or just now? If **RP** ’s statement had been made in a comparable circumstances in the 1920s, would you similarly disagree? Assuming you wouldn’t disagree with this statement if it were made about earlier times in America, then the disagreement is not about whether the claim is “sober” and “analytical” vs “rhetorical”, but whether law enforcement in the US is still, on average, racist enough (in practice, whether or not in motivation and ideology) to make this kind of general assumption. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [August 15, 2017, 5:14pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/125 "2017-08-15T17:14:20Z")
> [@Bricker](#): > > Here, I don’t completely agree. I think so much depends on the local police that making any kind of assertion about what’s “much more likely,” in a racial context is much more a rhetorical claim than a sober analytical one. > > Police are willing to order people, black and white, to stop filming them, even when the right to film police is well-established. The fact that police routinely overstep the boundaries set by the First Amendment isn’t so much a comment about any kind of racial “privilege” as it is a comment about “qualified immunity.” I concede that it varies significantly from department to department, and cop to cop. I concede that plenty of white people have their constitutional rights violated too. And I concede that as a kind of qualitative hypothetical, there’s no real way to prove my claim. Nevertheless, based on my judgment and experience (as cops would say!), when the main determinant of whether someone gets arrested is whether an officer feels threatened–as I think it would be in this case–race and racial stereotypes tend to matter quite a lot. Black people with guns tends to lead to gun control laws. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 15, 2017, 6:02pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/126 "2017-08-15T18:02:33Z")
> [@iiandyiiii](#): > > Was this always true, or just now? If **RP** ’s statement had been made in a comparable circumstances in the 1920s, would you similarly disagree? > > Assuming you wouldn’t disagree with this statement if it were made about earlier times in America, then the disagreement is not about whether the claim is “sober” and “analytical” vs “rhetorical”, but whether law enforcement in the US is still, on average, racist enough (in practice, whether or not in motivation and ideology) to make this kind of general assumption. In the 1920s, there was no 42 USC § 1983. (Well, okay, technically, there was – perhaps I should say that there was no _Monroe v. Pape_, the case that opened up § 1983 liability to cases in which the police violated state law.) There was no Title III of the Civil Rights Act of 1964; no _Griffin v. Illinois_ or _Gideon v. Wainwright_ to equalize the appellate process for challenging police action. So assuming **Richard Parker** ’s grandfather had weighed in on the issue, he’d have been describing a vastly different legal landscape. But regardless, I’m not sure what distinction you’re highlighting. “Sober” and “analytical” vs “rhetorical” turns on the question of how the opinion is formed and for what purpose it’s offered. You suggest this can be resolved by somehow determining if the entire country is “racist enough” to support the general assumption? How in the world we we quantify that claim? ---
**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 15, 2017, 6:07pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/127 "2017-08-15T18:07:19Z")
> [@Bricker](#): > > But regardless, I’m not sure what distinction you’re highlighting. “Sober” and “analytical” vs “rhetorical” turns on the question of how the opinion is formed and for what purpose it’s offered. You suggest this can be resolved by somehow determining if the entire country is “racist enough” to support the general assumption? How in the world we we quantify that claim? I think data about different treatment by law enforcement could resolve the claim – or at the very least I’m suggesting that one could be entirely “sober” and “analytical” and, based on the existing data, believe that what **RP** suggested is likely to be true, even if someone else could also be “sober” and “analytical” and not be confident enough to say so. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 15, 2017, 6:43pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/128 "2017-08-15T18:43:01Z")
> [@iiandyiiii](#): > > I think data about different treatment by law enforcement could resolve the claim – or at the very least I’m suggesting that one could be entirely “sober” and “analytical” and, based on the existing data, believe that what **RP** suggested is likely to be true, even if someone else could also be “sober” and “analytical” and not be confident enough to say so. I don’t agree (although am willing to be persuaded) that generic “different treatment,” is particularly relevant to the question. I think the situation being described here is _sui generis_, and I don’t agree that (for example) learning that African-American motorists are disproportionately ticketed sheds much useful insight here. ---
**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 15, 2017, 6:52pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/129 "2017-08-15T18:52:01Z")
> [@Bricker](#): > > I don’t agree (although am willing to be persuaded) that generic “different treatment,” is particularly relevant to the question. I think the situation being described here is _sui generis_, and I don’t agree that (for example) learning that African-American motorists are disproportionately ticketed sheds much useful insight here. A detailed discussion would probably be a hijack, but I think that there are other forms of data besides just things like “number of tickets” – such as polling on who admits to having experienced mistreatment by cops, among other things. ---
**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 15, 2017, 7:06pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/130 "2017-08-15T19:06:30Z")
> [@Bone](#): > > I’d say if the firearm is in your hand vs. holstered or slung, that’s brandishing. Position of fingers is too fine a distinction to be assessed in live situations. I have to agree with this. You might as well argue that the bolt was open and the breach as clear. If you are handling your gun, I don’t really give a shit that your finger is actually an inch away from the trigger instead of right on it. ---
**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 15, 2017, 7:08pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/131 "2017-08-15T19:08:16Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Going back to Tiki torch weapons, whether or not they make good weapons, [the Nazis were using them as weapons](https://youtu.be/R4i61_12SGY?t=339). For myself, having someone swing a lit fire at me at the end of a pole would be a less-than-peaceful experience. Did you watch the footage? Those metal cannisters fell right off the tiki torches 9frequently without even making impact with anything. The metal simply does not provide a heavy weighted end to that bamboo stick. Like I said, they make better spears than club. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [August 15, 2017, 7:29pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/132 "2017-08-15T19:29:54Z")
> [@Bone](#): > > I’d say if the firearm is in your hand vs. holstered or slung, that’s brandishing. Position of fingers is too fine a distinction to be assessed in live situations. > [@Damuri\_Ajashi](#): > > I have to agree with this. > > You might as well argue that the bolt was open and the breach as clear. > > If you are handling your gun, I don’t really give a shit that your finger is actually an inch away from the trigger instead of right on it. While I think it’s probably unwise for citizens to get kitted up and carry a long gun to a tense situation that’s very likely to involve a good bit of violent confrontation, and I’d question the judgement of the people that choose to do so, it seems pretty clear that it wasn’t brandishing in Virginia (given the apparent dearth of arrests for brandishing), and I’m fairly confident it wouldn’t qualify as brandishing in Utah. It may in your state. In California, I suspect most of what they did, from possessing standard-capacity magazines and non-neutered, un-registered ARs, to open-carrying, could result in a laundry list of charges, but I’m no expert on CA’s gun laws. Holding a rifle at the ready is certainly a more aggressive posture than having it slung or scabbarded. In some states, that may be the distinction that moves it from lawful possession to brandishing. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 15, 2017, 9:11pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/133 "2017-08-15T21:11:49Z")
> [@iiandyiiii](#): > > A detailed discussion would probably be a hijack, but I think that there are other forms of data besides just things like “number of tickets” – such as polling on who admits to having experienced mistreatment by cops, among other things. No, I’m still not persuaded. Two people can experience virtually identical treatment from Officer X during a traffic stop, but not report identically as to whether they felt mistreatment. ---
**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 15, 2017, 10:28pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/134 "2017-08-15T22:28:11Z")
> [@Bricker](#): > > No, I’m still not persuaded. > > Two people can experience virtually identical treatment from Officer X during a traffic stop, but not report identically as to whether they felt mistreatment. I’m not expecting to persuade you, I’m just saying that I think it can be reasonable to believe what **RP** said based on sober analysis – for example, it’s reasonable to believe that black people are no more likely to lie or be mistaken about this than white people. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 15, 2017, 11:03pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/135 "2017-08-15T23:03:16Z")
> [@iiandyiiii](#): > > I’m not expecting to persuade you, I’m just saying that I think it can be reasonable to believe what **RP** said based on sober analysis – for example, it’s reasonable to believe that black people are no more likely to lie or be mistaken about this than white people. No, bit it’s not necessary to postulate lies or mistake. One example might be imagining the black motorist pulled over for an offense he doesn’t believe he committed; he may attribute the stop to racial mistreatment while a white motorist simply thinks the officer is wrong, but doesn’t regard himself as mistreated. Both are responding to a combination of expectation and actual treatment, and this causes different conclusions from identical treatment. ---
**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 15, 2017, 11:08pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/136 "2017-08-15T23:08:12Z")
> [@Bricker](#): > > No, bit it’s not necessary to postulate lies or mistake. One example might be imagining the black motorist pulled over for an offense he doesn’t believe he committed; he may attribute the stop to racial mistreatment while a white motorist simply thinks the officer is wrong, but doesn’t regard himself as mistreated. Both are responding to a combination of expectation and actual treatment, and this causes different conclusions from identical treatment. Yes, but one of them is “right” and one is “wrong” in any given incident. They were either mistreated (due to race or otherwise) or not, whether due to possible unconscious bias, overt racism, other factors, or the lack of any of them. I see no reason to believe that black people’s answers, in aggregate, are less likely to be accurate than white people’s answers, in aggregate. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 16, 2017, 1:07am UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/137 "2017-08-16T01:07:27Z")
> [@Richard\_Parker](#): > > It’s still contingent, though. If you don’t do X, I will do Y. That contingency is relevant to all three of the potentially relevant legal doctrines. > > I agree that if the threatened action were clearly unlawful, and if the contingency were sufficiently likely to occur in the near future, then you might win on showing that there is sufficient immediacy for incitement. Someone here a while back posted an excellent law review article regarding free speech and laws which would apply in regards to true threats, fighting words, solicitation, and/or incitement. In that article it discussed a “conditional threat” and said that such a threat was only privileged if the condition was one which would allow the threatened conduct. For example, if I calmly said, “If you come to my home and threaten me with death or serious bodily injury, I will shoot you.” That would most likely be protected speech as, although threatening to shoot someone is generally illegal, the condition is one which I would be permitted to use such force. Conversely, if I said, “If you ever try to date my sister, I will shoot you” in a manner in which would put a reasonable person in fear (say you were contemplating dating my sister) then such a threat would not be privileged, even though it was not an imminent threat. However, what if I stopped a stranger on the street and yelled as loud as I could: “You motherfucker! If you EVER, and I mean EVER place me in reasonable fear of death or serious bodily harm, I will blow your FUCKING head off!!!” Surely that could be prohibited by law even though my statement is a privileged condition. The whole doctrine is confusing as hell and there are landmines for the unwary. ---
**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 16, 2017, 1:26am UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/138 "2017-08-16T01:26:13Z")
> [@HurricaneDitka](#): > > While I think it’s probably unwise for citizens to get kitted up and carry a long gun to a tense situation that’s very likely to involve a good bit of violent confrontation, and I’d question the judgement of the people that choose to do so, it seems pretty clear that it wasn’t brandishing in Virginia (given the apparent dearth of arrests for brandishing), and I’m fairly confident it wouldn’t qualify as brandishing in Utah. It may in your state. In California, I suspect most of what they did, from possessing standard-capacity magazines and non-neutered, un-registered ARs, to open-carrying, could result in a laundry list of charges, but I’m no expert on CA’s gun laws. > > Holding a rifle at the ready is certainly a more aggressive posture than having it slung or scabbarded. In some states, that may be the distinction that moves it from lawful possession to brandishing. That argument is really silly. If unholstering a pistol is brandishing, the equivalent for a long arm is gripping it from its slung position. Fingers are irrelevant for brandishing. As an example, if a person were to do that where it was otherwise legal to open carry longarms, like say, entering a convenience store, I would vote to acquit a shopkeeper who believes that to be a threat and kills the person. No, get out, no that’s not allowed, just draw and fire and I’d acquit. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [August 16, 2017, 3:29am UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/139 "2017-08-16T03:29:43Z")
> [@Bone](#): > > If unholstering a pistol is brandishing From the cites provided thus far it isn’t necessarily. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [August 16, 2017, 3:44am UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/140 "2017-08-16T03:44:28Z")
> [@Bone](#): > > That argument is really silly. I didn’t think I was making an argument, let alone a really silly one. I thought I was just relaying some facts. > [@Bone](#): > > … Fingers are irrelevant for brandishing. I agree. Fingers are irrelevant for purposes of brandishing. I wasn’t trying to make the argument that finger position figured into it at all. My explanation of “indexing” was just an attempt to educate some people on why their fingers were ‘inches away from the trigger’, and that it wasn’t a very unusual practice. I’d expect to see the same behavior everywhere from a gun range to a well-trained SWAT team. > [@Bone](#): > > As an example, if a person were to do that where it was otherwise legal to open carry longarms, like say, entering a convenience store, I would vote to acquit a shopkeeper who believes that to be a threat and kills the person. No, get out, no that’s not allowed, just draw and fire and I’d acquit. You can vote however you like. Depending on some other circumstances, I might too. [Previous page](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493.md?page=6) [Next page](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493.md?page=8)