Conflicting Reports: When Gun Rights Threaten Free Speech

Conflicting Reports: When Gun Rights Threaten Free Speech

• Introduction

  • The Second Amendment right to keep and bear arms, established in District of Columbia v. Heller 554 U.S. 570 (2008) and McDonald v. Chicago 561 U.S. 742 (2010), has created conflicts with First Amendment interests.
  • Gun rights advocates argue that arms promote free speech by resisting tyrannical government.
  • Guns often impede and chill free speech more than protecting it.
  • The Supreme Court's emphasis on the right to self-defense in Heller increases the urgency of assessing conflicts between the First and Second Amendments.
  • This article analyzes collisions between free speech and gun rights, focusing on:
    • Public political protests.
    • Carrying concealed weapons on university campuses.
    • Political deliberation and information disclosure.
    • Debates linked to gun violence and media content.
  • Courts have engaged actively with First Amendment claims for a century, but Second Amendment law is still developing. It remains unclear which gun regulations the Court might strike down.
  • Regardless of legal collisions, it's important to address how gun rights undermine free speech interests like speaking, assembling, protesting, learning, and advocating.
  • Part II catalogs First and Second Amendment collisions and considers how legal doctrine might resolve them. These collisions reveal conflicting values between constitutional protections.
  • Part III considers normative tensions in speech-arms collisions, such as the balance between individual autonomy and communal engagement, and between stability and dynamism.

Collisions Between First and Second Amendment Interests

• Free speech and gun rights appear harmonious, both promoting liberty. Speech and action (keeping and bearing arms) seem distinct, but conflicts have emerged since the individual right to bear arms was recognized.
• These collisions reveal tension between First and Second Amendment interests.

Public Carry vs. Public Discourse

The Charlottesville Problem: Open Carry vs. Public Protest

• In Charlottesville, Virginia (August 11-12, 2017), the "Unite the Right" rally, involving conservative activists, Nazis, and white supremacists, protested the removal of a Robert E. Lee statue.
• Left-wing counter-protests occurred, and violence culminated in Heather Heyer's murder when a conservative activist drove into a crowd.
• Virginia allows open carrying of firearms with few restrictions on assault weapons.
• Participants openly displayed rifles and handguns.
• An independent review criticized police for deficient planning and failure to protect public safety.
• Governor Terry McAuliffe noted militia members had better equipment than the State Police and that 80% of people had semiautomatic weapons.
• The First Amendment interest in protest and the Second Amendment interest in open carry have collided in other settings.
• Thirty-six states permit guns at public protests, while nine others allow guns with municipal discretion.
• Armed militia members claimed to protect all parties' ability to speak freely.
• Critics argue that firearm displays chill speech, intimidating those challenging the arms-bearers' message.
• The ACLU no longer defends the right to bear arms in public protests after Charlottesville.
• Open carry arguably serves both self-defense (Second Amendment) and expression (First Amendment).
• Commentators debate whether open carry has expressive content, but in most contexts, it is action rather than speech.
• If open carry conveys intimidation, it could be a "true threat," unprotected by the First Amendment. The strongest case for a First Amendment interest in open carry arises when gun rights activists display weapons in support of open carry itself.
• Courts have generally rejected claims that open carry expresses a coherent message.
• Any constitutional grounding for open carry at protests lies in the Second Amendment.
• The question is whether First Amendment concerns about chilling speech can justify legal restrictions on open carry.
• Heller and McDonald do not settle whether the Second Amendment protects open carry.
• Gun rights advocates argue for self-defense wherever they go, while others argue for public safety through "good guys with guns."
• The argument that open carry chills speech is both an individual autonomy argument and a societal concern about deprived information.
• The problem of open carry and public protest pits a gun rights autonomy argument against a communal free speech argument.
• The extent to which open carry intimidates speakers is an empirical question without sufficient data, but First Amendment law has taken chilling arguments seriously without data.
• Open carry can intimidate police, a crucial aspect of expressive freedom. Police presence can cool violence, while withdrawal increases private violence.
• Even without data, the argument that open carry chills speech deserves attention.
• Any chill from open carry comes from private actors, but the Court has used the First Amendment to limit government actions enabling private chilling.
• A finding that open carry law encouraged private chilling might support a constitutional claim.
• The First Amendment interest in public protest need only overcome Second Amendment objections to government regulation of guns at public protests.
• The simplest solution would be a broad legal ban on open carry. A more targeted approach would ban guns specifically at public protests.
• Such a ban would situate protests among the "sensitive places" where Heller permits restrictions on Second Amendment rights.
• A narrower approach would give law enforcement discretion to contain armed protesters in specified zones within or adjacent to protests.
• These targeted approaches have First Amendment parallels in arguments for according certain speech-promoting institutions special First Amendment status and for allowing certain restrictions on speech in distinctive settings like elections.
• However, engineering a special legal basis for regulating protests creates a risk that governments might restrict not just guns but also speech itself.
• The idea of a "protest" does not define a legal category, and protests are not subject to substantial government management. the Supreme Court has shown public protesters scant concern and occasional disdain.
• To avoid First Amendment problems, a zoning approach should be general rather than limited to protests.
• Law enforcement would need discretion to zone open carry based on public safety concerns in any setting, without regard to the content of the underlying speech or assembly.
• Like targeted protest zoning, generalized zoning of open carry would parallel the sort of "time, place, and manner" regulation that the First Amendment permits for speech on public property.
• If the Supreme Court announced Second Amendment protection for public carry, open carry zoning would require a judicial backstop.
• Generalized zoning would ameliorate public guns' chilling effect on public speech.

State Universities: Concealed Carry vs. Public Education

• Pro-gun state legislatures are extending concealed-carry mandates to university campuses.
• As of August 2018, sixteen states had statutory bans on carrying concealed firearms on university campuses; twenty-three states gave universities discretion to decide whether to allow concealed firearms; and ten states mandated concealed carry on campuses, usually with limited exceptions.
• Numerous states are considering legislation to create or extend campus carry mandates.
• The trend toward mandatory campus carry has strong momentum.
• Arguments for and against mandatory campus carry track those from the public protest setting.
• On the gun rights side, the argument that campus carry will deter "bad guys with guns" appears dubious. Accordingly, gun rights advocates emphasize individual autonomy: gun owners should be able to defend themselves on campuses just like anywhere else.
• Free speech advocates counter that a concealed carry mandate will cause professors, students, and others on campus to self-censor for fear of sparking a violent response, thus chilling speech and undermining universities’ core mission of promoting free, vigorous exchanges of ideas.
• Some free speech advocates frame their objection to mandatory campus carry as a defense of academic freedom.
• One federal court has categorically rejected any First Amendment concern with mandatory campus carry. In Glass v. Paxton, professors challenged a Texas law that forced state university campuses to permit concealed carry.
• The Fifth Circuit threw the case out for lack of standing. The court accused the professors of trying to "manufacture standing by self-censoring [their] speech based on what [they] allege[] to be a reasonable probability that concealed-carry license holders will intimidate professors and students in the classroom."
• The Fifth Circuit’s holding effectively forecloses any legal remedy for concealed firearms’ chilling of speech.
• If the Fifth Circuit’s reasoning in Glass prevails nationwide, then First Amendment law will have no role in limiting public carry on campus, or for that matter in public protests.
• Even so, the interest in an open and robust learning environment can and should inform policy debates. Mandatory campus carry provides dubious benefits while causing substantial harms.
• Recent studies indicate that both professors and students would be less likely to teach and engage in debate over controversial topics in the presence of a firearm.
• On the other side of the dispute, no evidence appears to show that concealed carry makes campuses safer. To the contrary, a public health study on campus firearms shows that public carry laws increase violence.
• The study emphasizes the distinctive dangers of guns on university campuses because of young adults’ cognitive developmental limitations, vulnerability to mental illness, and high incidence of alcohol abuse.
• Many students and others claim that campus carry degrades their autonomy by chilling their speech and endangering their safety.
• The debate over campus carry represents a stark collision of the interests in gun rights and free speech.
• If we take the free speech objections to campus carry seriously, then treating university campuses as gun-free "sensitive places," as permitted by Heller, makes sense.
• Universities, unlike protests, are distinctive institutions under First Amendment law, subject to substantial government administration.
• Barring firearms on campuses would protect important free speech interests while only marginally affecting armed self-defense.

Gun Rights vs. Public Information

• Discussions of guns, gun rights, and gun regulations matter deeply to policymakers and ordinary people. Engaged political deliberation and informed public discussion about guns are essential.
• Gun rights advocates increasingly seek to suppress public information about guns.
• Those efforts have taken several different forms: actions to suppress legislative debates about gun regulation and lawsuits about gun violence, suits to block states from publicly disclosing facts about gun ownership, and laws that bar doctors from asking and telling patients about the public health dangers of guns.

Suppression of Political, Legal, and Public Debate About Guns

• The gun lobby's furthest-reaching strategy for blocking government consideration of gun regulations has been to starve public and legislative debates by barring federal agencies from collecting and reporting information about gun violence.
• In 1996, Congress enacted the Dickey Amendment, which banned all funding for research on guns and public health from the Centers for Disease Control (CDC).
• Fifteen years later, Congress extended that funding ban to the National Institutes of Health.
• Both bans resulted from concerted lobbying by the National Rifle Association (NRA) in retaliation for scientific research that undercut the gun rights agenda.
• In 2018, responding to the recent wave of mass shootings, Congress lifted the CDC funding ban; but Congress allocated no actual funds to gun research, and researchers doubt the policy change will prove to be anything more than an empty gesture.
• The research ban has let the NRA denigrate public health concerns about gun violence without having to confront any empirical pushback from the government bodies best situated to gather and analyze relevant data.
• Even the Dickey Amendment’s architect and namesake eventually relented, acknowledging that funding federal research is essential to formulating effective federal policy on gun violence.
• Although the government has discretion to allocate its resources, imposing a blanket ban on using government funds to learn more about a crucial policy matter embraces ignorance, secrecy, and fear. Such cowardice is antithetical to our First Amendment tradition.
• The gun lobby has also restricted legislative consideration of gun regulations by persuading most states to enact preemption statutes, which remove or restrict local governments’ traditional authority to regulate firearms.
• By itself, preemption implicates questions of government structure and does not disturb free speech interests. Several states, however, weaponize preemption by imposing legal liability on individual legislators who violate preemption statutes.
• These preemption statutes leave somewhat unclear what constitutes a "violation," but presumably any effort by a local official to regulate the preempted field would violate preemption. A legislator thus could face liability even for introducing or sponsoring a proposed gun regulation as a symbolic protest against gun violence.
• The First Amendment does not protect legislators’ exercise of government power. On the other hand, constitutional protections for legislative debates, such as the federal Constitution’s Speech or Debate Clause, closely parallel constitutional speech protections.
• Moreover, barring legislatures from considering gun regulations betrays constituents’ First Amendment interests by foreclosing the policy information that legislative debates generate.
• Paralleling state restrictions on legislative consideration of gun regulations, the federal Protection of Lawful Commerce in Arms Act (PLCAA) bars most lawsuits in federal and state courts against manufacturers and sellers of guns and ammunition for deaths and injuries from gun violence. 15 U.S.C. §§ 7901–7903 (2012)
• The PLCAA has broadly succeeded in choking off litigation against the gun industry, especially manufacturers. However, the Connecticut Supreme Court recently held that the Act did not bar families of the children and adults murdered in the 2012 Sandy Hook Elementary School gun massacre from suing the murder weapon’s manufacturer for promoting the weapon’s unlawful use.
• Like allocation of funds and preemption of local gun regulations, creation and restriction of legal causes of action lies within the government’s authority. However, also like those other measures, legal immunity insulates gun violence from public scrutiny.
• Lawsuits not only correct substantive wrongs but also advance First Amendment values by informing public policy debates. The PLCAA, by shielding the gun industry from most legal liability, cuts off an important source of public information and potential policy reform.
• In their most extreme and frightening repudiation of democratic politics, gun rights partisans have used the threat of violence conveyed by the open carrying of firearms to silence legislative deliberation.
• With increasing frequency, armed activists and sometimes elected officials openly carry firearms into legislative chambers and other government buildings.
• Such violent chilling of legislative deliberation corrodes the indispensable First Amendment norm of resolving policy differences through political debate.
• Gun rights advocates have even begun using government power to penalize private criticism of gun rights. After a February 2018 gun massacre killed 17 people at a Parkland, Florida high school, public pressure mounted for companies to end business relationships with the NRA.
• The First Amendment bars the government from imposing financial penalties on expressions of ideas. Georgia’s retaliation against Delta amounts to a frontal assault, in the name of gun rights, on private speech and on the broader First Amendment interest in informed public debate.

Gun Privacy vs. Government Disclosures

• Gun rights advocates have begun to assert privacy interests in their gun ownership.
• Tracking the Supreme Court’s recognition that effective exercise of speech and assembly rights sometimes requires shielding speakers’ identities from public view, these new “gun privacy” arguments posit anonymity as necessary for the effective exercise of the right to keep and bear arms.
• Belying their formal parallels to First Amendment doctrine, gun privacy claims substantively undermine the public’s First Amendment interest in access to government information about matters of public concern.
• Most states shield the identities of gun permit holders from public view. A New York law, however, makes handgun permit holders’ names and addresses matters of public record.N.Y. Penal Law § 400.00(5)(a)
• Another gun privacy challenge, National Rifle Association v. Bondi, asserted that gun rights advocates should be able to anonymously challenge a gun regulation in court.
• True, the district courts in both cases denied claims grounded in conventional privacy principles. However, the New York court in Putnam County recognized a strong Second Amendment basis for a gun privacy principle.
• Gun privacy arguments, however, present greater problems than either court acknowledged. In First Amendment doctrine, which provides the template for Second Amendment gun privacy claims, the Supreme Court’s anonymity decisions have barred the government from collecting certain information about expressive activity, based on fears that the government itself would use that information to harass or punish speakers.
• Moreover, the courts in Putnam County and Bondi (and for that matter the Supreme Court in Doe v. Reed) undervalued the public’s First Amendment interest in access to politically salient government information.
• We cannot hope to govern ourselves effectively and wisely without thorough information about public issues and controversies. This is a core insight of First Amendment doctrine and theory. The information necessary for self-government includes the identities of people whom the government has licensed to hold the power of deadly force and of people who ask courts to overturn legislative policy choices.
• The Supreme Court has made clear that enforcing public ignorance violates the First Amendment.

Gun Secrecy vs. Professional Communication

• A final collision between gun rights and public information arises from government efforts to promote gun rights by suppressing communication between professionals and the people they serve.
• This collision inverts the structure of the gun privacy cases. It involves First Amendment objections, focused on speakers’ expressive autonomy rights, to government policies grounded in Second Amendment interests.
• A Florida statute, the Firearms Owners’ Privacy Act,
  included several restrictions on physicians’ communications with patients about firearms.
• The Act barred physicians from keeping medical records about patients’ gun ownership, from asking patients whether they owned guns, and from “harass[ing]” patients about gun ownership.
• In Wollschlaeger v. Governor of Florida, a group of physicians and medical organizations challenged those restrictions as violating physicians’ First Amendment freedom of speech.
• As to the Second Amendment justification, the court held that the state had failed to show that the communications restricted by the Act violated anyone’s Second Amendment rights; that regulating private conduct was an ineffectual way to protect Second Amendment rights; and that, in any event, the First Amendment bars suppressing information as a means of protecting Second Amendment rights.
• Wollschlaeger, much more than Bondi or Putnam County, takes the public’s interest in access to information seriously.
• Physicians’ First Amendment right to expressive autonomy defeats gun rights interests not squarely recognized in Heller. However, Putnam County suggests that a judicially recognized Second Amendment interest in gun privacy defeats the First Amendment value of public information.

Competing Accusations About Causes of Gun Violence

• On the numbingly frequent occasions when mass shootings capture public attention, gun control advocates largely blame gun proliferation, pressing for various new gun regulations.
• In contrast, advocates for gun rights categorically oppose new regulations. They believe that many or most gun restrictions would violate the Second Amendment, and they fear that conceding any causal connection between gun proliferation and gun violence would undermine gun rights.
• To solve this dilemma, gun rights advocates propose alternative responses.
• Often they advocate nonlegal measures, typically shifts from supposedly permissive cultural norms to more conservative ones. When gun rights advocates do propose regulatory responses, their proposals shift the focus away from guns and toward measures that threaten other liberties: more power for law enforcement, more constraints on mentally ill people, gun regulations strictly limited to political “out groups” like foreign nationals.
• Most vigorously and commonly, gun rights advocates seek to shift the blame for gun violence from guns to expressive materials, mainly violent video games. They argue that images of violence in popular media desensitize young people, leading to aberrant violent acts that incidentally involve firearms.
• Proponents of the theory that mass culture causes mass shootings seek restrictions on the First Amendment rights of popular media creators and their audiences.
• The biggest problem with blaming gun violence on popular culture is that empirical evidence abjectly fails to support the causal linkage. A psychologist who surveyed available empirical data concluded that “‘links’ between mass shooters and video games are based on illusory correlation and confirmation bias.”
• The Supreme Court has squarely rejected legal and empirical arguments that real-world violence justifies relaxing First Amendment protection for video games.Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786 (2011)
• The types of gun regulations most commonly proposed in the wake of mass shootings—strengthened background checks and bans on certain military-grade weapons and ammunition—seem among the least likely sorts of regulations to violate the Second Amendment.
• Heller itself validates “conditions and qualifications on the commercial sales of arms” and regulations of “dangerous and unusual weapons.”
• The ease with which Second Amendment partisans default to throwing speech they dislike under the gun rights bus underscores the broader tension between the interests in gun rights and expressive freedom. First and Second Amendment interests have found great trouble coexisting, let alone working harmoniously to protect some abstract, unitary conception of liberty.

Normative Tensions in Speech-Arms Collisions

• Collisions between free speech and gun rights follow normative fault lines that help to explain how these two interests end up clashing so deeply and frequently.
• Where gun rights require a deep commitment to individual autonomy, free speech depends on a robust vision of communal interaction.
• Similarly, where gun rights promote a form of social and political stability, free speech opens opportunities for social and political dynamism.

Individual Autonomy vs. Communal Interaction

• Collisions between First and Second Amendment interests pit communal against individual values.
• Arguments for gun rights routinely appeal to a highly individualistic vision of the bearer of arms. Certainly the gun rights movement and gun culture gain strength from numbers in the NRA’s wildly effective lobbying efforts. Bearing a firearm, however, is a solitary enterprise.
• The Supreme Court, in assessing what counts as speech for First Amendment purposes, considers the perspectives of both speaker and audience. Free speech arguments often start with the paradigm of the individual speaker, but they gain force from the value of public information for communal interaction.
• The distinction between the essentially individualist nature of gun rights and the essentially communal nature of free speech defines a crucial normative tension in speech- arms collisions.
• Gun rights claims in speech-arms collisions appeal centrally to individual autonomy. Open carry activists who want to bring their guns to public protests and concealed carry activists who want to bring their guns to university campuses claim, first and foremost, a right to defend themselves wherever they go.
• Gun privacy arguments and bans on physician inquiries about guns seek to import to the Second Amendment the quintessentially autonomous “right of the individual to be let alone.”
• When the NRA scuttles federal funding for public health research on guns or secures legal immunity for gun makers and sellers, it is really helping a powerful industry. Its political rhetoric, however, emphasizes the rights and concerns of the individual gun owner.
• Individualism permeates the gun rights movement. For decades that movement’s defining goal was to establish that the Second Amendment protects not a collective right of the people to form an armed militia but rather an individual right to have a gun.
• When the Supreme Court fulfilled that goal in District of Columbia v. Heller, the Court’s opinion subordinated the most historically salient justification for the Second Amendment—the collective interest in resisting tyrannical government—to a disaggregated individual right to personal self-defense. The Court read the Militia Clause out of the Second Amendment.
• That culture exalts the heroic individualism of the gun owner while condemning gun regulation as a socialist project to oppress that gun owner and take his guns away.
• The specious “good guys with guns” argument for guns’ communal value adds little to the essentially individualistic argument for gun rights.
• Many free speech arguments in speech-arms collisions begin with individual autonomy. Opponents of open carry at protests and concealed carry on campuses contend that fear of guns will chill speakers, denying individuals the effective right to say what they please.
• Litigants who want to sue gun manufacturers and companies like Delta that express qualms about gun rights assert their autonomy to push back against guns and gun culture.
• The Eleventh Circuit in Wollschlaeger v. Governor of Florida became the only court to vindicate a First Amendment right against gun rights interests because so far it is the only court to have heard a complaint that a government promoted gun rights at the expense of speakers’ expressive autonomy.
• Even in those collisions, however, expressive autonomy interests stand alongside broader First Amendment interests in public discourse. Critics of public carry worry not just that public guns will chill speakers but that the chill will deprive audiences of valuable information.
• Gun violence litigation not only re- dresses private injuries but also informs public debates and policy discussions about gun violence. The legal analysis in Wollschlaeger may have turned on physicians’ expressive autonomy, but the essential interest in the case was patients’ access to fully informative medical care.
• Communal free speech values in speech-arms collisions reflect rich and potent communal elements in broader First Amendment theory. The familiar “marketplace of ideas” metaphor extols the collective apprehension of truth and treats expressive freedom as the best structure for determining truth.
• Democracy- centered theories of the First Amendment posit expressive freedom as providing the political community with the information necessary for collective self-govern- ment. Thomas Emerson’s safety valve theory views expressive freedom as protecting society from violent action by letting dissenters blow off steam.
• Vincent Blasi’s “checking value” holds that the First Amendment serves the political community by curbing government abuses. First Amendment provisions beyond the Free Speech Clause focus on communal interests.
• The Press Clause protects the capacity of the news media to inform the public about the workings of government and other matters of public concern. The freedom of expressive association protects the right of groups and communities to express and share ideas.
• Communication does not happen in a vacuum of individual autonomy. Rather, it requires constructive interactions between and among speakers and audiences.
• While communal interests matter deeply in First Amendment theory, they can be difficult or impossible to vindicate in First Amendment litigation, as illustrated by the Fifth Circuit’s denial on standing grounds of campus carry’s chilling effect in Glass v. Paxton.
• That difficulty leaves the impression of a false equivalence between the competing interests in speech-arms collisions. If only individual autonomy mattered, then resolving these collisions would come down to a choice about which sort of autonomy—the freedom to speak or the right to keep and bear arms—mattered more.
• Once we see that the speech side of speech-arms collisions also embodies a communal interest in public communication, and that the arms side presents no communal interest of any substance, then resolving those collisions presents a choice between a broader and a narrower set of interests.

Stability vs. Dynamism

• An examination of current problems in First Amendment doctrine has emphasized the doctrine’s importance for mediating between stability and dynamism in politics and society.
• The gun rights arguments in those collisions assert the importance of guns for protecting social and political stability. In contrast, the free speech arguments appeal to the potential for dynamic discussion and debate.
• Gun rights arguments in speech-arms collisions emphasize the importance of guns for preservation and protection. Public carry advocates see threats in the political intensity of public protests and in the intellectual foment of universities.
• They argue that carrying weapons protects them from those threats while also enabling them to protect others from violent disruptions. Their desire to carry guns outside the home suggests a desire to carry the home itself, to be as safe at a protest or a college lecture as in one’s private preserve.
• Gun privacy arguments reflect the anxiety that public knowledge of gun owners’ identities will expose them to harassment and even violence. Gun rights arguments in other speecharms collisions appeal even more directly to stability.
• Cutting off funding for re- search into gun violence ensures that no advance in knowledge will disrupt the gun rights status quo. Preventing legislation and litigation about gun violence forecloses change in gun laws and policies.
• Barring physicians from talking to their patients about guns cuts off the risk that health information might cause gun owners themselves to change their lifestyles. Blaming popular culture for gun violence kills two destabilizing birds with one bullet, blocking changes in gun policies while attacking cultural materials that stimulate youthful rebellion against adult authority.
• At a certain level of abstraction, the Second Amendment’s allowance for an armed populace to rise up as one and overthrow a tyrannical government promotes stability by preserving a non-tyrannical status quo. In more immediate terms, though, nothing could strike closer to the core of social stability than an armed insurrection against the government.
• Potential change means the threat that bad people will hurt or kill them and their families and steal their property. The government cannot or will not protect them. Only their guns keep them safe.
• In sharp contrast, arguments for choosing free speech over gun rights empha- size what speech can achieve and transform. True, the argument that public carry chills speech appeals to safety. Yet opponents of public carry in protests and uni- versities demand safety not to stand still but rather to forge ahead.
• The counter- protesters who stood up to armed white supremacists in Charlottesville sought to tear down the monuments of an old order. The students, faculty, and others who decry campus carry want to debate bold ideas and fresh insights.
• Gun control advocates use scientific research, the legislative process, the courts, and the public square to pursue a radical shift in the laws and culture of a society saturated with firearms.
• Efforts to inform the public through all those arenas, through govern- ment disclosures, and even through physicians’ unconstrained medical advice serve the interest in conceiving and implementing new polices and behaviors. The arguments for free speech aspire to the dynamic world we can imagine.
• Free speech advocates have the path of dynamism, creativity, and progress all to themselves. For many people in this fraught socio-political moment, pursuing dynamism is a hard sell. The anxieties of our age, including anxiety about gun violence, have helped to submerge dynamism as a theme in present free speech discourse.
• Dynamic arguments for choosing free speech over gun rights spring from the defining insights of our First Amendment tradition.
• Gun rights threaten free speech. Anyone who shares this Article’s normative inclination should recognize the danger that speech-arms collisions pose to expressive freedom.
• Collisions between First and Second Amendment interests reveal an intractable opposition. That opposition will only grow as the Supreme Court expands Second Amendment jurisprudence. Our legal future thus presents a stark choice between robust communication and gun proliferation.