Free Speech and Guns in 2037

By William Hausdorff and Eric Segall

Grandpa, I learned in school today that not so long ago American hate groups were allowed to march through the streets of our town, shouting threats and racial slurs at people, and to carry guns while they did that.  And that some people got killed.

I’m so glad they can’t do that anymore. Can you explain this to me?  Because I really didn’t understand it.  Is all that really true?   

Well, you're too young to remember this, but it all began to change with what happened in Charlottesville, Virginia back in 2017—just about 20 years ago. 

I heard about Charlottesville in school—it’s famous, right? But I can’t remember why.

I’ll tell you.  Back in 2017, we Americans used to have some odd ideas. We thought that having Nazis and the Ku Klux Klan marching through multi-racial/religiously diverse cities with rifles and shouting white power slogans—even though we didn’t like them—was protected by the First and Second Amendments of our Constitution.  In fact, we would congratulate ourselves for being staunch defenders of free speech and the Constitution—we told everybody that we were the model for everyone else in the world!

But grandpa, weren't people scared, especially black, brown and yellow people, when the Nazis and Klan marched by their houses and schools and churches?  And what about non-Christians like Jews and Muslims?  And how about the children?  That would have given me nightmares!

Yes, many people were terrified by this.  But our best lawyers had convinced everyone—it's proudly described in the law books at the time—that letting those people shout, threaten and march with loaded guns through neighborhoods, personally targeting the people that lived there with their threats, was what they called “protected speech.”  These people had a right to express themselves. 

This, I’m afraid, was considered more important than preventing people from being scared, or feeling threatened in their own homes, or kids having nightmares.  

But these odd ideas didn’t start all at once. You might say it started about 40 years before Charlottesville, when our best lawyers had convinced the courts that we had to allow Nazis to march through a neighborhood in Illinois. 

Have you heard of Skokie?  That’s where many Jewish people, including Holocaust survivors, lived. The Justices said that these Nazis had the right to freely express themselves like anyone else, even though they were against free speech for others.

At the time, we Americans were very proud of ourselves, because many countries—especially those in Europe that had been overrun by Nazis in the past—wouldn't have allowed these neo-Nazis or the Klan to threaten people that way.  But we said that the US was strong enough to handle this.

Did the Nazis in Skokie carry guns too, grandpa?

Some might have, but if they did they hid them.  That’s because at that time nobody thought people could openly march with guns.  I think way back then it would have been considered crazy!

But … it was about twenty years later that a group of regular people who own guns, supported by the companies that make guns, began arguing that basically everybody should be able to own a gun and carry it anywhere.  And they eventually convinced those smart Justices, actually only five of the nine Justices, in 2008 I think.  They even decided that people had the right to own assault rifles that could kill many people in just a few minutes. That came a little later.

Was that in the First Amendment too?  Is carrying assault rifles considered “freedom of expression”?

[Chuckles] Not yet!  No, that was the Second Amendment, which talks about this old idea of “well-regulated militias” being necessary for the security of the state, and which was obviously meant to only apply to militias. But then, over 200 years after the Second Amendment was passed, five of those smart Justices, saying they were using history but really using something called “living constitutionalism,” decided that the Second Amendment also applied to owning guns for hunting and for personal self-defense.  It even covered people who engage in hate speech and are thus threatening other people. The Justices also said that states weren't even allowed to have laws that would stop fanatics such as Nazis from carrying guns. 

That's crazy, Grandpa!  Didn't anybody try to stop it?  

Nope, politicians were afraid to lose their jobs if they spoke out against guns.  Moreover, the Supreme court—the smartest judges—said it was part of what made the US the country everyone looks up to.

This is a weird story Grandpa.  But now I’m really getting scaredI thought my teacher said those things aren’t permitted anymore.

Well, that’s where Charlottesville comes in.  Back in 2017, there was a march there for “White Power,” with Nazis and KKK members carrying guns and shouting that they wanted to kill all the Jews.  There were a lot of people who protested them, but the White Power crowd did, in fact, kill one innocent person—drove over her with a car, and injured several others.  Most people were really outraged.

I would think so!!

But then things got even more twisted.  A disturbed man who had become President of the United States 6 months earlier—everyone was very surprised when he was elected—decided that some of the marchers were actually "fine people.”  And he said that on national television.

Many people were upset with the President and upset this happened. All the attention on the news went to the disturbed President, and wondering if he would quit or be fired.  And as you know Trump only lasted one year in office.

But essentially no one—not even the smartest lawyers and politicians—stepped back for a moment and realized there was something crazy about a country that says it is okay for hate groups to march with guns through cities and towns.

That is hard to believe, Grandpa.

It gets worse.  Not surprisingly, the President's compliments made the White Nationalists happy, and they began having more demonstrations in different cities.  This time, however, the counter-protestors (they called themselves the "anti-fascists") began carrying guns too.  Some of them said, “Two can play that game.”

What happened?

What any halfway intelligent person would have predicted.  It was very difficult for the police to stop this.  We ended up having 10 years of bloody battles between White Nationalists and anti-fascist folks in various cities.  Many people died, including some of your relatives.

How did it stop?

It only stopped after there were so many deaths and riots that the country couldn’t take it anymore.  People started to think a bit differently about what really should and shouldn’t be allowed.

Hurray!  But what happened to the First and Second Amendments?

They’re still there, but now they are interpreted a bit differently. What really happened was that after so many deaths, riots, and injuries—some lawyers were killed in one of the great riots of 2027—many politicians and even Supreme Court Justices began to think harder.  Some began to wonder if those countries in Europe with restrictions were perhaps not so stupid.  Those were the countries, after all, that had been overrun by the Nazis, and so had long ago decided that violent, threatening hate speech should not be protected at all, and that people didn’t have a right to carry guns around in public.

We already knew this in 2017, you see, but Americans had this idea that we were exceptional, and that our ideas of free speech and gun rights were better than everyone else’s.

So the Justices revisited an old legal rule—an American rule—they already had.  That rule had said that the government could place reasonable restrictions on the time, place and manner of speech. 

This time, they decided that the rule could be used to make sure that the Nazis and Klan members, when they wanted to speak their hate, had to do it in times and places where they probably couldn’t start fights or be reasonably considered to create a climate of violent intimidation.

But what about the guns?

Just as important, those smart Justices decided that people actually did not have the right to bring guns to protests.  And many more politicians agreed, in public.

Wait, when did they decide that the Constitution gave everybody a right to own guns?

In 2008.

Grandpa, it took them twenty years to figure out that allowing people who are really angry at each other to carry seriously dangerous weapons into the streets and get into arguments was a bad idea.  Twenty years of violence.

I’m afraid so.

Even I know that was a bad idea, and I’m only 11 years old.