There's Little Doubt: The Second Amendment Threatens the FirstRoundup
tags: Second Amendment, guns, violence, First Amendment, free speech
Diana Palmer is a councilmember in Glens Falls, New York. Timothy Zick is a professor of law at William & Mary Law School and author of the forthcoming book Managed Dissent: The Law of Public Protest.
Many Americans fervently believe that the Second Amendment protects their right to bear arms everywhere, including at public protests. Many Americans also believe that the First Amendment protects their right to speak freely and participate in political protest. What most people do not realize is that the Second Amendment has become, in recent years, a threat to the First Amendment. People cannot freely exercise their speech rights when they fear for their lives.
This is not hyperbole. Since January 2020, millions of Americans have assembled in public places to protest police brutality, systemic racism, and coronavirus protocols, among other things. A significant number of those protesters were confronted by counterprotesters visibly bearing firearms. In some of these cases, violence erupted. According to a new study by Everytown for Gun Safety and the Armed Conflict Location & Event Data Project (ACLED), one in six armed protests that took place from January 2020 through June 2021 turned violent or destructive, and one in 62 turned deadly.
These kind of data fill a void in ongoing debates about the compatibility of free speech and firearms at protest events. For example, is the phenomenon of armed protests new? Is it frequent? The open display of firearms at public protests, including long rifles and what are sometimes called “assault-style rifles,” is a relatively new phenomenon. Although many states allow firearms in public places, until recently few Americans have openly toted firearms to political demonstrations. The Everytown/ACLED study examined thousands of protests, showing a marked uptick in protests at which people were visibly armed following the police murder of George Floyd. It found that at least 560 events involved an armed protester or counterprotester. Loose state firearms laws are part of the explanation for this phenomenon. The incidence of armed protests was three times higher in states with expansive open-carry laws, the study noted.
Such research makes much clearer the implications of open carry for public safety, public protest, and constitutional democracy. Some have argued that open carry will make protests safer. In fact, tragedies were far less frequent at protests that did not involve firearms, the Everytown/ACLED research revealed: One in 37 turned violent or destructive, and only one in 2,963 unarmed gatherings turned fatal.
In short, the visible presence of firearms increases the risk of violence and death when exercising one’s First Amendment rights. The increased risk of violence from open carry is enough to have a meaningful “chilling effect” on citizens’ willingness to participate in political protests. Research thus far has focused on open display of firearms, but further study is needed to evaluate the public safety concerns that may still be present when protesters or counterprotesters bring concealed firearms to demonstrations. In addition, concealed carry may not have the same chilling effect; it’s possible that without weapons visible, protesters will not be deterred. But at the same time, merely knowing that people might be armed could keep people away from public protests.
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