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First Amendment, Not the Second, Is How We Secure Liberty

The First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (Newtown graffiti / CC BY 2.0)

Our political system is more willing to take near-absolutist positions on gun ownership than it is with free speech, especially when it comes to the speech rights of people of color or Muslims. But our words and ideas are our most important tools. Owning and using them will achieve more change than guns ever will.

The First Amendment protects peaceful protest, free speech and organizing as expressions of liberty. But the Second Amendment of today is not just about guns. Its adherents see it as an expression of dissent. Three-quarters of gun owners associate guns with their personal sense of freedom. Defending that right is a means to protect property and liberty. The argument goes that any gun regulation is the start of a slippery slope ending in the government taking away all guns and rights. This is a much different view of protest than marching in the streets.

The modern National Rifle Association is largely to credit for turning the Second Amendment into a liberty issue with anti-government undertones. NRA Executive Vice President Wayne LaPierre said in February that gun control advocates seek to “eliminate the Second Amendment and our firearms freedoms so they can eliminate all individual freedoms.” LaPierre sent a remarkable fundraising letter in 1995 warning against giving “jack-booted government thugs more power to take away our constitutional rights, break in our doors, seize our guns, destroy our property, and even injure or kill us. Not too long ago, it was unthinkable for federal agents wearing Nazi bucket helmets and black storm trooper uniforms to attack law-abiding citizens.”

LaPierre walked the latter comments back, but the anti-government view of the Second Amendment is still mainstream within the GOP today. 2016 presidential candidate (and now Cabinet official) Ben Carson cautioned against “having a population that is defenseless against a group of tyrants who have arms,” and Texas Sen. Ted Cruz sent a fundraising letter saying the Second Amendment “is a Constitutional right … to serve as the ultimate check against governmental tyranny—for the protection of liberty.”

This conception of the Second Amendment is relatively modern. The original Second Amendment was understood to protect the right of militias in the absence of a standing army. Through the 19th century as guns became more portable, people owned them for personal protection, but regulations were uncontroversial. For much of the 20th century, the NRA was primarily a sport and conservation organization that endorsed gun control laws. Even then-NRA President Karl Frederick testified in 1934, a time when gangsters could roam the streets with machine guns, that guns “should be sharply restricted and only under licenses.”

The NRA position changed when right-wing anti-government movements of the 1970s inspired mutiny and a rightward turn at an infamous 1977 meeting dubbed the “Revolt at Cincinnati.” Unhappy with the group’s moderate positions, the faction that took over the NRA reframed gun control as an infringement on liberty itself. That shift drew more anti-government extremists to identify with the organization. Through the 1990s, fierce gun control debates broke out in Congress in the context of the federal siege in Waco, Texas, which became a subject of NRA meetings and a lightning rod for domestic terror movements. Timothy McVeigh, the right-wing domestic terrorist who killed 168 people and maimed or injured more than 680 in the 1995 Oklahoma City federal building bombing, once mailed his congressman an angry letter sealed with a membership decal, saying “I’m the NRA.”

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The sad truth is that those advocating for gun rights have done a far better job of protecting that right than those who want to defend speech. Gun control in response to acts of gun violence is virtually nonexistent. But free speech rights for minorities are regularly undermined whether or not violence is involved. Guns kill, words do not. But we seem more willing as a society to limit the right to protest with words than we are to limit the right to protest by owning guns.

Consider what happens to free speech rights in the wake of Muslim-perceived violence: The First Amendment goes on the chopping block. Policymakers are fine with limiting the social media speech of perceived Muslim perpetrators of violence or those who support them. The law most frequently used to prosecute terrorism has sent people to decades in prison on account of their speech. The government executed (by drone, with no trial) a U.S. citizen turned al-Qaida spokesman because of the ideas he spread. A President Obama adviser and Harvard Law First Amendment professor proposed “reconsideration” of free speech rights in the wake of Muslim-perpetrated violence but not other sources of violence.

The same holds true of the right to protest for communities of color. The public and law enforcement responses create dangerous environments for non-whites who exercise their First Amendment rights (or seek Fourth Amendment freedoms from search or seizure). In Charlottesville, Va., in August 2017, neo-Nazis marched with rifles and tactical gear. When a white nationalist opened fire with a handgun at counterdemonstrators, police didn’t budge. One black protester was beaten and kicked to the ground so badly that his spine was injured and he required stitches. He faced felony charges (now dropped). Blacks protesting police slayings of unarmed blacks are called “rioters” when non-blacks are not. And black protesters of police violence now face FBI investigation as “black identity extremists.”

The readiness to restrict speech and protest and do nothing for gun violence sends a clear message: The property rights of some are more important than the rights to equality and life for everyone else. And the Second Amendment does not protect minorities. Weapons did not secure liberty for Cherokees during the genocidal relocation of the Trail of Tears, Japanese-Americans mass incarcerated during World War II, or blacks like Philando Castile in Minnesota in 2016, who was fatally shot by an officer during a traffic stop for legally carrying a firearm (an incident on which the NRA is silent).

If there was an organization that was as aggressive as the NRA—appealing to anti-government views, adopting absolutist positions, mobilizing nationwide grass-roots activism and donating millions to political candidates—except acting on behalf of the speech rights of Muslims, for example, that organization would almost certainly be under federal investigation.

Part of the reason is the relative privilege that right-wing, anti-government violence maintains over other forms of violence. It is rare for white, right-wing perpetrators of ideological violence to be called terrorists in the media.

That discrepancy says a lot about the priorities of our society. We must address the myth—rooted in race and property—that the Second Amendment is the way to obtain freedom. Instead, we must promote the stronger freedoms of speech, due process and equal protection under the law.

Carey Shenkman
Contributor
Carey Shenkman is a First Amendment and human rights attorney, and a fellow at the Institute for Social Policy and…
Carey Shenkman

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