# 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:** 12\ **Page:** 8
**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, 4:00am UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/141 "2017-08-16T04:00:30Z")
> [@Ruken](#): > > From the cites provided thus far it isn’t necessarily. The word “draw” is in the CA penal code. Drawing the weapon in a threatening manner is brandishing, in my state at least. It would certainly be sufficient justification for police to defend themselves. ---
**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, 5:32am UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/142 "2017-08-16T05:32:39Z")
nevermind ---
**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, 11:15am UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/143 "2017-08-16T11:15:22Z")
> [@Bone](#): > > The word “draw” is in the CA penal code. Drawing the weapon **in a threatening manner** is brandishing, in my state at least. Drawing the weapon in a rude, angry, or threatening manner violates CA law. But neither drawing nor holding a drawn gun qualifies on its own. ---
**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 16, 2017, 12:20pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/144 "2017-08-16T12:20:09Z")
> [@HurricaneDitka](#): > > 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. Those being situations where firing the rifle at legitimate targets would be expected. In a peaceable assembly, not so much. Look, I’m glad I learned about indexing. Knowledge is power! But the phrasing here implies that it’s either finger-indexed or finger-on-the-trigger. I see no reason why at a peaceable assembly the gun owner’s hand needs to be near the trigger at all. Keep the gun scabbarded or slung, or at most hold it with the hand well away from the trigger. If brandishment laws don’t cover this sort of situation, it’s high time to rewrite them. ---
**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 16, 2017, 1:30pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/145 "2017-08-16T13:30:26Z")
> [@UltraVires](#): > > 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. That might have been me! I think that analysis is right, at least regarding threats targeted at the person who controls the condition (which was not present on these facts). There’s a separate open question about whether the threat doctrine requires immediacy at all. If it doesn’t, then it doesn’t matter how immediately the condition would be satisfied or unsatisfied either. I think the contingency piece matters more for incitement and solicitation. ---
**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, 1:41pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/146 "2017-08-16T13:41:26Z")
> [@Left\_Hand\_of\_Dorkness](#): > > … If brandishment laws don’t cover this sort of situation, it’s high time to rewrite them. You’ll probably succeed in that effort in places like NY/ MD / CA (if someone hasn’t already beaten you to the punch). You’re less likely to find the votes in UT/ AZ / ID. VA is probably in the middle somewhere, perhaps closer to the RKBA side of things. Good luck. ---
**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 16, 2017, 2:48pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/147 "2017-08-16T14:48:58Z")
> [@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. I live in Virginia and brandishing seems very “in the eye of the beholder” (the beholder in this case being a cop). It is clear that merely exposing your gun can be brandishing. Touching your gun can be brandishing. Holding your gun in the ready position can very well be brandishing. The lack of charges may arise from three factors. Cops just aren’t as threatened by white dudes brandishing guns (I wonder if they would have felt the same way about Black Panthers brandishing guns as they did about white Nazis brandishing guns). Cops felt they couldn’t confront all those guys with guns. Or there were enough cops who were somewhat sympathetic to the Nazi protesters that they were going to interpret the facts in the light most favorable to the Nazis. > [@](#): > > 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. If you crouched and held your gun in the ready position with their fingers resting on the trigger guard, I think a reasonable person could fear for their safety. ---
**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, 3:43pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/148 "2017-08-16T15:43:28Z")
> [@Damuri\_Ajashi](#): > > … The lack of charges may arise from three factors. Cops just aren’t as threatened by white dudes brandishing guns (I wonder if they would have felt the same way about Black Panthers brandishing guns as they did about white Nazis brandishing guns). Cops felt they couldn’t confront all those guys with guns. Or there were enough cops who were somewhat sympathetic to the Nazi protesters that they were going to interpret the facts in the light most favorable to the Nazis. … I don’t believe [these Antifa protesters with long guns](https://static01.nyt.com/images/2017/08/15/us/15counterprotest1/15counterprotest1-master768.jpg) got arrested either. Does that alter your analysis about “cops who were somewhat sympathetic to the Nazi protesters” at all? ETA: BTW, thanks for the personal insights in your first paragraph. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 18, 2017, 12:57am UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/149 "2017-08-18T00:57:19Z")
> [@Richard\_Parker](#): > > That might have been me! > > I think that analysis is right, at least regarding threats targeted at the person who controls the condition (which was not present on these facts). There’s a separate open question about whether the threat doctrine requires immediacy at all. If it doesn’t, then it doesn’t matter how immediately the condition would be satisfied or unsatisfied either. > > I think the contingency piece matters more for incitement and solicitation. Neither one of us can figure it out, and neither can the courts. That’s why I think that while Brandenburg announced a good First Amendment principle, the open questions it left caused far more problems than it solved. Under Brandenburg, a person can advocate for the violent overthrow of the government because his speech is political and there is no danger of imminent lawless action. Fine, I agree. Conversely, if a person threatened to shoot his state legislator standing in front of him, that would not be protected because it is imminent. However, it would seem under a plain reading of Brandenburg, that I could advocating overthrowing the government tomorrow afternoon at 2pm, and such speech would be protected as my threat is not imminent. You might argue that would be solicitation, but why was the conduct in Brandenburg not equally solicitation? I would file that under “a bunch of rednecks are spewing nonsense that they will never accomplish so we will let it go.” That’s not a good basis for law. ---
**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 19, 2017, 12:43am UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/150 "2017-08-19T00:43:53Z")
[The ACLU seems to be moving in exactly the direction that my OP was asking about.](https://www.wsj.com/articles/aclu-changes-policy-on-defending-hate-groups-protesting-with-firearms-1503010167) They reference Volokh for support for their position, although I am unable to find the specific cite. ---
**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 19, 2017, 3:24pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/151 "2017-08-19T15:24:22Z")
> [@iiandyiiii](#): > > I’m not advocating for one answer or the other, since I’m unsure what the best answer is. I just think that at some point, I think it’s likely that we could have two very angry heavily armed groups with opposing views arriving at the same spot to protest/counter-protest, and a bloodbath would become very likely. And perhaps we either have to live with that likelihood, or restrict their 1st amendment rights (by confining them to separate areas) or 2nd (by banning open-carry at marches and protests). It does seem as though gunas and other weapons are completel banned from the boston rallies today. [https://www.boston.com/news/local-news/2017/08/17/these-items-will-be-banned-on-the-boston-common-saturday](https://www.boston.com/news/local-news/2017/08/17/these-items-will-be-banned-on-the-boston-common-saturday) > [@](#): > > In addition, police said the following items will be banned from the Common throughout the day: > > – Firearms, knives, weapons, sharp objects, shields, or fireworks > – Pop-up tents or canopies > – Cans, glass containers, pre-mixed beverages, or alcoholic beverages > – Wagons or pull carts > – Coolers > – Drones > – Pets (excluding certified service animals) > – Grills, propane tanks, or open flames > – Bicycles > – Flag poles, bats, clubs, sticks (including signs attached to sticks) > – Any athletic equipment or other item that could be used as a weapon Does anyone think that this violates 2A? ---
**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 19, 2017, 3:46pm UTC](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493/152 "2017-08-19T15:46:31Z")
> [@k9bfriender](#): > > It does seem as though gunas and other weapons are completel banned from the boston rallies today. > > [https://www.boston.com/news/local-news/2017/08/17/these-items-will-be-banned-on-the-boston-common-saturday](https://www.boston.com/news/local-news/2017/08/17/these-items-will-be-banned-on-the-boston-common-saturday) > > Does anyone think that this violates 2A? Boston already doesn’t allow carry of any kind, so this isn’t a new restriction. I do think general carry bans are violative of the 2nd, but this prohibition here is status quo. [Previous page](https://boards.straightdope.com/t/when-the-first-and-second-amendment-collide/793493.md?page=7)