Guns Are Not Speech

I have spent my whole life defending the right to protest. But nobody has the right to intimidate.

Members of the Boogaloo Boys pose for photographers outside the Oregon Sate Capitol Building in Salem on January 17, 2021. (Photo by Mathieu Lewis-Rolland / AFP via Getty Images).

by Aryeh Neier

In 1939, two weeks before the outbreak of World War Two, my parents and I arrived by boat in England. We had fled from Berlin, in Nazi Germany, where I was born in 1937. Soon after our arrival, my family was separated because the British government wanted to make sure that there were no spies and saboteurs among the refugees. My father was held for several months and my mother could not take care of me while working. At two years old, I was placed in a hostel for refugee children where I stayed for eleven months until our family was reunited.

Nevertheless, forty years later I defended the right of a small group of Americans calling themselves Nazis to march in Skokie, Illinois. It was 1977, and I was Executive Director of the American Civil Liberties Union. In an attempt to be as provocative as possible, the marchers said they would wear Nazi uniforms. The episode attracted an immense amount of attention: Skokie was home to a large number of Holocaust survivors, many of them horrified by the prospect of Nazis marching in their community.

In dealing with the controversy that erupted, I made hundreds of speeches, many of them in synagogues, defending free speech for everyone, including the Nazis. I published a book on the subject called “Defending My Enemy.” I hold the same beliefs today as I expressed then: I would defend free speech for all, regardless of my antipathy for their views.

But in these controversies, we have to be clear about what free speech actually entails. In recent years, there has been a troubling increase in people conflating free speech with something quite different: the right to carry weapons. On November 26, The New York Times published a front page article on the increasing frequency with which guns are being carried and displayed by participants in demonstrations. It included an analysis of more than 700 such demonstrations during the past three years and found that, at about 77 percent of them, those carrying guns came from the political right.

Indeed, right-wing groups have been increasingly outspoken in recent years about what they claim are efforts to suppress the expression and dissemination of their views. A spokesman for Gun Owners of America told the Times that “Americans should be able to bear arms while expressing their First Amendment rights, whether that’s going to church or a peaceful assembly.” Proud Boys and Oath Keepers invoked free speech to justify their armed participation in the January 6 Capitol assault.

But these arguments represent a fundamental misunderstanding of what free speech is all about. Freedom of speech is about persuasion. Those engaged in free speech try to persuade others on the basis of the information they disseminate and the quality of their arguments. If these are worthless or repugnant, like those of the Nazis who proposed to march in Skokie, they deserve to fail. If their views have merits, that should be the basis on which they persuade others. In either case, their right to express their views should be protected.

Weapons, on the other hand, are about threats. Openly brandishing weapons conveys the message that they may be used against those who express contrary views. It is the antithesis of freedom of speech, and clearly indicates that one is not interested in persuasion or dialogue but is only interested in intimidation. Unsurprisingly, protests at which firearms are carried are far more likely to turn violent than protests without guns present.

For these reasons, I would not have defended the right of the Nazis to march in Skokie if they had chosen to carry guns, knives, baseball bats, or anything else they could have used to assault or intimidate people. They had a right to seek police protection as they marched—but no one has a right to use or threaten violence to impose their views on others.

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It seems that in the current political environment there is a tension between the First Amendment and the Second Amendment—or at least some of the ways the Second Amendment is being interpreted.

The First Amendment prohibits the government from curbing the peaceful expression of views, except in rare cases when a speaker incites imminent unlawful action in circumstances in which such unlawful action is likely to materialize. An example would be a call to lynch someone when a mob has gathered nearby.

The seeming tension with the Second Amendment arises from a number of factors. First, recent Supreme Court decisions such as District of Columbia v. Heller (2008) and New York State Rifle and Pistol Association v. Bruen (2022) have broadened the right to carry weapons in ways that were not previously recognized in American jurisprudence. Whatever the merits of those decisions, the Court has expanded Second Amendment protections for those who wish to possess weapons.

At the same time, gun rights have become increasingly central to the Republican Party’s identity, especially in this age of political polarization. Prominent right-wing leaders have remained silent about the fact that some of their followers are bringing weapons to protests. By keeping quiet, they are making the current situation worse, and the political right is being emboldened to openly carry weapons.

The Supreme Court has not yet ruled on the display of weapons during public protests. I have no idea how the Court will resolve that tension if and when it considers the issue. But regardless of any eventual legal outcome of this debate, the display of arms at a political rally or demonstration has a chilling effect on those with different views. It damages the culture of free speech, and people will be less willing to speak their mind or engage in counter-protest.

For more than a century, since the struggles during World War One over opposition to the draft, freedom of speech and its limits have been intensely debated in the United States. During this time, there have been some precedents for the display of weapons at demonstrations, such as those that involved the Black Panthers in the late 1960s. But I have never seen anything like what’s happening today. It is vital that Americans of all political identities rally around freedom of speech as a means of peaceful persuasion rather than coercive intimidation. Otherwise, we stand to lose a core principle of American democracy.

Aryeh Neier is the president emeritus of the Open Society Foundations and founder and former executive director of Human Rights Watch.

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