Toting a weapon in a demonstration gestures as close as possible to outright violence while still technically remaining within the domain of speech.
Earlier this month, in Bunkerville, Nev., representatives of the Bureau of Land Management withdrew from a tense standoff with supporters of Cliven Bundy, a rancher who owes the federal government over $1 million in unpaid fees for allowing his cattle to graze on public land. The hundreds of self-appointed militia and “states’ rights” activists who flocked to support Bundy, many in full tactical gear and openly carrying assault rifles, blockaded a federal interstate and trained their weapons on B.L.M. employees who sought to negotiate with the rancher and his family. Fearful of a pitched gun battle, the B.L.M. departed, leaving Bundy and his supporters to celebrate, emboldened, with a barbecue.
Bundy, who does not “recognize the federal government as even existing,” has gone on to leverage his spotlight to air a variety of retrograde, racist views. But the ensuing media kerfuffle has deflected attention from the fact that his armed supporters remain, dug in.
On one level, the affair in Bunkerville can be seen as a vestige of Old West range-war mentality, opportunistically remixed with overtones of the militia movements of the early 1990s and an identity-politics firestorm that’s very 2014. But as a transaction between the state and citizens decided not by rule of law, nor by vote or debate, but rather by the simple presence of arms, Bunkerville is deeply troubling. Guns publicly brandished by private individuals decided the outcome. For all Bundy’s appeals to constitutional justification, what mattered at the end of the day was who was willing to take the threat of gunplay the furthest.
Bunkerville is simply the next step in a trend that has been ramping up for some time. Since the election of Barack Obama, guns have appeared in the public square in a way unprecedented since the turbulent 1960s and ’70s — carried alongside signs and on their own since before the Tea Party elections, in a growing phenomenon of “open carry” rallies organized by groups like the Modern American Revolution and OpenCarry.org, and in the efforts by gun rights activists to carry assault weapons into the Capitol buildings in New Mexico and Texas (links to video). According to open carry advocates, their presence in public space represents more than just an expression of their Second Amendment rights, it’s a statement, an “educational,” communicative act — in short, an exercise of their First Amendment freedom of speech. (See this, from the group Ohio Carry, and this Michigan lawsuit.)
This claim bears serious consideration. The First Amendment has historically been much harder to limit than the Second, and so extending the freedom of speech to the open display of weapons raises several urgent questions about how we understand the relationship between expressing ideas and making threats, between what furthers dialogue and what ends it.
But are guns speech? Is carrying a weapon as an act of public protest constitutionally protected under the First Amendment? And if so, what do guns say?
The courts have traditionally recognized “symbolic speech” — actions that convey a clear message — as deserving of First Amendment protection (by, for example, protecting the right of students in Des Moines to wear armbands protesting the Vietnam War). As “the expression of an idea through an activity,” symbolic speech depends heavily on the context within which it occurs. Unlike pure speech, symbolic speech is more susceptible to limitation, as articulated by the Warren court’s 1968 ruling in United States v. O’Brien. The outcome of that case, the O’Brien test, establishes a four-pronged series of qualifications for determining when symbolic speech can be limited: (1) Any limitation must be within the state’s constitutional powers; (2) the limitation must be driven by a compelling governmental interest; (3) that countervailing interest must be unrelated to the content of the speech, touching solely on the “non-communicative aspect” of the act in question; and (4) any limitation must be narrowly tailored and prohibit no more speech than absolutely necessary.
In practical terms, this litmus test suggests that you can carry a gun as symbolic speech, particularly in the context of a pro-Second Amendment demonstration. The state’s clear interest in maintaining public order can be narrowly satisfied by demanding that protesters either carry guns that are unloaded — at least with an open chamber — or which otherwise have the barrel or action blocked. Thus far, open carry protesters have largely followed this rule, notably by sticking tiny American flags into their guns. “If the SWAT team comes down and starts surrounding us with tactical gear, it only takes a minute to pull them out,” the organizer of one such event told reporters. “But that’s not going to happen.”
Seeing weapons featured in a public protest might strike many Americans as outrageous or alarming — something more out of a CNN segment from a foreign conflict zone than in a live broadcast from the steps of the local state capitol. But the courts have held that distressing and outrageous speech is still protected, and that even calls for the overthrow of the government made at armed rallies are protected unless those statements are expressly intended to provoke “imminent lawless action.” The Supreme Court has also extended protection to hyperbolic and figurative speech even when it involves ostensibly threatening the president.
The paradoxical upshot: if you and I get into a heated dispute at the local watering hole, and I say something ambiguous about how you’d best be quiet while casually pulling back my jacket to reveal that I’m packing heat, there’s a solid chance I’ve just committed felony brandishing — but if I stand outside an event featuring the president of the United States with a loaded handgun and a sign invoking Thomas Jefferson’s injunction that the “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants,” I’m in the clear.
But what does it mean, in a democracy that enshrines freedom of speech, to publicly carry a gun as an expression of political dissent? Toting a weapon in a demonstration changes the stakes, transforming a protest from just another heated transaction in the marketplace of ideas into something else entirely. It’s bringing a gun to an idea-fight, gesturing as close as possible to outright violence while still technically remaining within the domain of speech. Like a military “show of force,” this gesture stays on the near side of an actual declaration of war while remaining indisputably hostile. The commitment to civil disagreement is merely provisional: I feel so strongly about this issue, the gun says, that if I don’t get my way, I am willing to kill for it. As Mao understood, the formal niceties of political persuasion are underwritten by the very real threat of harm. “Political power grows out of the barrel of a gun.”
We should also note that not all symbolic speech is created equal. On the contemporary stage, those bearing guns in protest are most likely to be white, right-leaning, and rural. As the historian Adam Winkler has documented, this represents a more or less direct reversal of the upheavals of the late ’60s and ’70s, when Republican politicians pursued new gun control legislation in response to armed protests by urban African-American leftists. Today, it is those most sheltered from actual state violence — from the day-to-day reality of police brutality — who also feel most threatened by the state, most free to threaten violence against hypothetical violations, and most entitled to opt out of civil discourse by reaching for their weapons. Our racial double standards for who can safely gesture at political violence are enormous. At least before his racism became public, Bundy and his supporters could point assault weapons at federal agents and be lionized as “patriots” by a United States senator and celebrated on Fox, whereas a single New Black Panther standing near a polling station while holding a billy club prompted calls on that same network for former Navy SEALs to show up in force and “fight back.”
Where does this leave us? Now more than ever, the state’s putative monopoly on violence has been counterbalanced by the free market proliferation of weapons. With over 300 million firearms in private hands in this country, there are nearly as many guns as there are Americans. By this measure, we’ve become a crude democracy not just of the vote or of the idea, but of the bullet.
Contemplating guns as speech, we confront a kind of autoimmune disorder: The tools once instrumental to the birth of our nation, and to the protection of the individual and the state alike, are increasingly turned against both. Guns historically used to midwife and safeguard the right to free speech are now growing ever more cross-wired with it, and speech cannot but be degraded in the process.
Citizens in a democracy make a certain pact with one another: to answer speech with more speech, not violence. No matter how angry what I say makes you, you do not have a right to pull a gun on me. But now the gun has already been drawn, nominally as an act of symbolic speech — and yet it still remains a gun. A slippage has occurred between the First and Second Amendments, and the First suffers as a result. The moral bravery political protest demands is no longer enough; to protest in response now requires the physical bravery to face down men with guns.
This situation is alarming, but it is also tragic. Asking after the propriety of guns in the public square ignores a basic reality: They are already there, and not just in ambiguously threatening demonstrations. We live in an era in which mass shootings have become a tacitly accepted feature of social life. Any space, public or private — offices, movie theaters, malls, street corners, schools — can be transformed at a moment’s notice into the site of a blood bath. Wherever we go, our existence as social selves — our vulnerability to one another in democratically shared spaces — is in the firing line.