There is a gunfight brewing at the Bill of Rights corral, featuring a duel between the First Amendment Right to free speech and the Second Amendment right to bear arms. It is a battle over how to draw the boundary line of free speech which was crafted nearly 50 years ago, well before recent Supreme Court decisions recognized a Second Amendment individual right to bear arms.
Normally one would not see any connection between the First and Second Amendment. The former, especially the speech clause, is about expressive freedoms, the latter is about gun ownership and self-defense. Yet as the recent controversies surrounding the printing and distribution of 3-D gun designs show, the First and Second Amendments are in tension. These 3-D cases test the limits of what is speech and implicitly, whether a right to bear arms means obtaining the plans to build your own gun.
But even beyond the 3-D printer issue, the First and Second Amendment are becoming more interconnected, especially as it comes to defining what is speech and when the presence of a weapon changes things.
Beginning early in the 20th century the Supreme Court struggled with defining the line between what is protected speech or not. Justice Oliver Wendell Holmes, Jr. famously declared in the 1919 Schenck v. United States opinion that “most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” His point was that the First Amendment is not absolute and not all forms of speech merit constitutional protection.
Schenck enunciated the clear and present danger test to draw the line between speech and conduct that could be regulated. It asked whether words could be used in a way such that they created a clear and present danger of the type of evil Congress wished to prevent. The test was formulated in light of subversive speech and subject to minor variations, the test endured until Brandenburg v. Ohio in 1969.
Brandenburg featured a KKK rally with members fully robed and hooded, carrying loaded weapons at a cross burning. One speech featured demands to take “revengeance” [sic] against African-Americans (they used the N-word instead) and Jews, and another speech asserted the government was oppressing the white race. These individuals were charged under a state criminal syndicalism law, and Brandenburg received a $1,000 fine and up to ten years in prison.
The Supreme Court threw out the conviction, contending that their statements were protected free speech. Brandenburg drew a new free speech line–-the imminent lawless test–-saying that until statements are “directed to inciting or producing imminent lawless action” they are protected free speech. Brandenburg, along with cases such as 1989 Texas v. Johnson decision which ruled that some behaviors such as flag burning contain expressive or symbolic acts that are protected speech, define the line on what the First Amendment protects.
But Brandenburg and Johnson were decided well before the 2008 District of Columbia v. Heller and the 2010 McDonald v. Chicago cases declaring that the Second Amendment protects an individual right to bear arms that even extends to states. When Brandenburg was decided there were little in terms of Supreme Court Second Amendment case law and what did exist, did not legally assume the right to bear arms extended to individual ownership of guns. But imagine Brandenburg litigated today, how much further would the Court go? At what point would a court hold that the presence of weapons changes protected speech into something else?
Brandenburg involved speech associated with loaded guns and it was protected by the First Amendment. How much further does a Second Amendment individual right to bear arms push the outer boundaries of the First Amendment now? Additionally, if Texas v. Johnson recognized flag burning or other expressive acts as speech, is perhaps now brandishing a gun at a rally a form of expressive conduct? At what point might merely carrying or displaying a weapon be considered an expressive or symbolic activity worthy of First Amendment protection?
The First and Second Amendment are not absolute rights, both are subject to limits as the courts have told us. Defining those limits, and deciding when these two rights conflict or converge is the gunfight brewing at the Bill of Rights corral surrounding 3-D gun plans and other activities involving guns that may include a speech component that may not be regulated.
David Schultz is a professor of law at the University of Minnesota and a professor of political science at Hamline University.