1st v. 2nd: What Happens When Amendments Collide?

One of the most difficult questions in constitutional law walks the jeopardous terrain between the First and Second Amendments. Professor Joseph Blocher of Duke Law School explains what happens when free speech rights and gun rights collide.

The conversation begins by examining whether carrying a firearm qualifies as speech protected by the First Amendment. Prof Blocher explains that while carrying a gun is expressive conduct, (it can convey a clear message), not every expressive act constitutes free speech. For example, acts of violence or fraud are clearly expressive but are not protected under the First Amendment. While public carry of a firearm may be expressive, courts have generally ruled that carrying does not trigger First Amendment protection, particularly when the government is regulating for public safety reasons.

The Second Amendment enshrines the right to carry a firearm, so does that include a right to carry a gun while protesting? While some may feel safer exercising their First Amendment rights armed, others may be deterred from engaging in free speech or assembly by the presence of guns. There may also be public safety reasons why a city or state may wish to limit guns at protests. To this end, Blocher explains that states may be able to regulate public protests as “sensitive places.” Historical precedent has limited gun carrying in sensitive places such as courthouses or polling stations. Courts have generally accepted such laws as compliant with the Second Amendments.

Amendments can overlap and conflict, but they can also inform one one another. Some scholars and courts have looked to more-developed First Amendment doctrines to inform how the Second Amendment should be interpreted. Blocher mentions that this 'constitutional borrowing' can be appropriate if the two contexts are similar.

Joseph Blocher is a leading Second Amendment scholar and a professor at Duke Law School. He serves as co-director of the Duke Center for Firearms Law