At the suggestion of a friend, I have been reading over a little bit of Brandenburg v. Ohio, the 1969 legal case which most definitively decided that one’s right to freedom of speech ends where incitement to violence begins… specifically, speech that is “directed at inciting or promoting imminent lawless action,” and which is “likely to incite or produce such action.” Interestingly, in that case, the Supreme Court was deciding in favor of a Klan member’s speech, and striking down Ohio’s Criminal Syndicalism Act as an unconstitutional encroachment on the First Amendment rights of citizen. The Court’s opinion that speech must intentionally provoke likely violence in order to lose its protected status was the standard it set forth for prosecuting speech, which Ohio’s law fell short of.
But there is a Constitutional paradox here, relating specifically to the first and second amendments.
1. 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.
2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The Second Amendment is a kind of doomsday arrangement, an assurance of civilian control of the state. In this way, it is a rather unique completion to the checks and balances that characterize the American Republic, in a sense undermining the absolute nature of the State’s monopoly on force.
Naturally, the security of a free State is not only — or even primarily — threatened by internal forces of tyranny. In the 18th century, colonial security against Indians often fell to irregular forces like militias, so the “security of the free state” might be read in that time as “the security of the state.” But the danger of tyranny is a powerfully present concept in American political thought, one that permeates the Declaration of Independence, and which can be felt in the Constitution as well. The Founding Fathers looked back through thousands of years of political precedent, and were largely inspired by the Republic of Rome in the formation of the American Republic. Rome had a standing army, and the idea that the Founding Fathers simply neglected the possibility of such an institution arising in North America seems unlikely… to put it mildly. Ensuring “the right of the people to keep and bear arms” cannot only have been intended to protect the state from external threats if bearing arms is considered an unalienable right from “God or Nature’s God,” rather than a utilitarian privilege or duty.
As such, the Second Amendment stands as a kind of latent endorsement for violence against the tyrannical state.
But this means that under Brandenburg, the Second Amendment becomes something like one of Zeno’s paradoxes. As the Second Amendment approaches its purpose — allowing for armed insurrection against the state — it also approaches illegality.
Consider the following analogy. A man makes a social media post, saying that he believes all politicians found to have colluded with foreign nations ought to be shot. Without any other information, this appears to be a hypothetical, theoretical statement, a protected expression of the man’s own political beliefs. But suppose it had just been uncovered that a high-ranking congressman was found to have colluded with Saudi Arabia in some treasonous fashion. The exact same social media post is transformed from something hypothetical to something more concrete, a kind of call for violence. Let us suppose further that, in the past six months, there have been five attempted vigilante assassination attempts on law-makers for similar reasons. Now context has rendered the social media post an incitement to violence and one that is likely to produce “imminent lawless action.”
In the same way, as the historical and political dynamic intensifies, and the gap between the political ruling class and the American population at large widens, the Second Amendment itself may eventually violate Brandenburg‘s standard, serving as an intentional incitement to arms which is likely to produce violence… especially when coupled with, for instance, the oath of enlistment.
But of course, the Second Amendment cannot be illegal by the standard of a Supreme Court ruling from 1969. It was here first, and as a part of the Bill of Rights, it stands as the supreme law of the land, higher even than the courts themselves and their 9 high-priests. Rather, the Second Amendment would break Brandenburg. This puts us in the very strange position of admitting that in at least some cases, intentional and likely incitements to violence are legal.
When the time actually comes, the line between “legal” and “illegal” may become irrelevant, in favor of what is expedient against a tyrannical state which has established as “illegal” anything which cuts against its own malicious interests. But the legal relevance of this paradox is not relegated to the distant future when such a physical conflict actually arises, because the legal conflict exists here in the present. Either the Second Amendment does not protect the right of citizens to arm themselves for the purpose of possible insurrection against the state, or the Brandenburg standard is not a universal standard… and therefore, not a legal standard. The former interpretation would seem to render the entire Second Amendment a superfluous platitude; “you can own guns, except when it’s important.” The latter would seem to allow — at least in some instances — for the instigation of imminent violence.
I don’t have a solution for this paradox. It seems clear that legally speaking, the Second Amendment trumps Brandenburg, but the interpretation of the Second Amendment is not as clear as its chronological and legal priority. On its face, the Brandenburg standard seems like an eminently fair and reasonable one, but there may yet be a more precise and coherent standard we have yet to arrive at.
Intuitively, my suspicion is that this paradox might be avoided if we detach ourselves from the Enlightenment basis for Free Speech, one that was lately adopted in 1918 and swapped in for a much older and less clear but more defensible sense of free expression. The Common-Law, experiential sense of “Free Speech” may leave room for certain precedents in calls to violence (such as duels, or violent insurrection in some cases), while simultaneously prohibiting petty and unjustified lawlessness, without existential concern for absolute moral coherency. But this is just an intuition. And as things get more divisive in the coming years, the relevance of this paradox may become more important. Eventually, the courts will have to decide whether the right to bear arms exists in an absolute, god-given sense, given its violence-instigating purpose, or if — as Justice Thomas said in Morse v. Frederick — we have the right except when we don’t.