< Guns as Free Speech?


Friday, November 15, 2013

BOB GARFIELD:  Last weekend, a small group of women met at the Blue Mesa Grill in the Dallas suburb of Arlington. The women belonged to the local chapter of Moms Demand Action for Gun Sense in America, a gun-control advocacy group formed after the mass shooting at Connecticut's Sandy Hook Elementary. At the same time that Moms Demand Action was holding its meeting, a larger group of men, women and children rallied outside the restaurant, protesting the moms by defiantly carrying the very weapons at issue. That group was Open Carry Texas, whose principal means of expression is to rally in force, fully armed. The question is in a society that considers cross burning and flag burning and political donations protected speech, can a posse bearing lethal weapons make the same claim?


Slate’s Dahlia Lithwick wrote this week about the rise of Open Carry demonstrations. Dahlia, welcome back to OTM.

DAHLIA LITHWICK:  Thank you for having me.

BOB GARFIELD:  In Texas, openly carrying rifles, even assault rifles, is perfectly legal, right, provided there’s no intent to threaten nor frighten or intimidate.

DAHLIA LITHWICK:  The Open Carry law is clear. And Texas is by means the only open carry state, and you are allowed to carry long guns, which includes the kind of shotguns, rifles, AR-15s, AK-47s that were being brandished in the parking lot. That very, very strange provision about whether it's, quote, “calculated to alarm” is the ambiguous part here, because who knows what’s calculated to alarm.


And here is where Open Carry Texas is really interesting. They say, the purpose here is not intimidation and they say, our objective is to educate. We are only knowing and intentionally engaging in content meant to raise awareness, so this is the opposite of trying to create alarm. What we’re trying to do is create a dialogue, a, a conversation about the Second Amendment, and what is more speechy than that?

BOB GARFIELD:  And to create a new normal, wherein the very sight of - of people with loaded guns simply isn't scary, it’s just – the status quo.

DAHLIA LITHWICK:  Well, that’s, you know, a big part of these Open Carry protests. If people can just get accustomed to seeing American guys out of uniform, walking around with AK-47s strapped to their back, then they will somehow get over their prejudice against guns and start to realize that this is what the framers intended. And they really do feel that what they're doing is helping create a, a shift in the culture, so that we can have a more informed and - they would say - meaningful conversation about guns, instead of reacting with the kind of terror that those four women in the restaurant felt.

BOB GARFIELD:  Is there a case to be made that the attempt to intimidate is implicit because the, the principal audiences for their demonstrations are gun control groups?

DAHLIA LITHWICK:  It cuts both ways. In one sense, you can say, you know, they targeted these women, they got on their Facebook page and pretended to be interested in going to this meeting, so  clearly this was not a neutral act; they were coming to intimidate. The other way I would think about it, if I were defending Open Carry Texas is, no, this is clearly speech, right? This is a counter-demonstration. This is speakers reacting to other speakers. What more pure form of speech is this?

BOB GARFIELD:  Not intimidation, education.

DAHLIA LITHWICK:  Exactly, this is their target audience. And who better to talk to than people who are proposing gun-control measures?

BOB GARFIELD:  I'm not a free-speech absolutist, but there is a limited number of circumstances that, you know, I see as  exceptions. One is the famous shouting “Fire” in a crowded theater scenario. We, as a, a country, have witnessed horrendous violence at the hand of assault weapon-wielding criminals – dead children. Scarcely a week goes by where there is not a – another  incident of, of murder by assault weapon. Is the nation not already the, the crowded theater to which Justice Oliver Wendell Holmes referred?

DAHLIA LITHWICK:  There are reasons to say, look, we regulate all kinds of speech. We have all kinds of time, place and manner regulations about speech. This is one of those areas in which there are so many nuanced readings of a person carrying an AK-47. One reading is, I am expressing my Second Amendment right that I may carry a gun and that I like to carry a gun and, by the way, I think you should carry a gun too. But there’s another reading, oh my God, that person can kill me.


What I think Open Carry Texas would say is it is perfectly clear that second reading isn't accurate. I'm not here to kill you. I'm here to make a statement about guns. But I think, as a general matter, the problem with these Open Carry protests is it is not an unreasonable reading to see somebody with a weapon and say, my first and only reaction is this person could kill me.

BOB GARFIELD:  All right, Dahlia, as always, thank you so much.

DAHLIA LITHWICK:  It's my pleasure. Thank you for having me.

BOB GARFIELD:  Dahlia Lithwick is a writer for Slate. With University of Georgia Law Professor Christian Turner, she co-wrote the piece, “It’s Not My Gun, It’s ‘Free Speech.’” 


Dahlia Lithwick

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