How the Second Amendment protects hate speech

Posted on October 30, 2012


Last week, I attended a debate on hate speech law,the harm caused by hate speech, and whether the U.S. should follow the lead of many European nations in criminalizing such speech.

I think both sides had good points, but it brought up another argument to me, when factored in with the issue of gun violence and race I’ve been grappling with for my Critical Race Theory paper. The argument is that the way Second Amendment rights are interpreted ensures that there is little motivation or chance of a shift in First Amendment interpretation to bar hate speech.

The first thing the constitutional law professor did was dismiss the gravity of harm done by hate speech. This makes sense if you look at the bigger picture. U.S. Constitutional law protects private gun ownership. It would be out of all rational proportion to defend the right to own a firearm, a piece of technology which, if used in a context between human beings, involves lethal force and grave harm, whether used in defense or offense, and then turn around and say you can’t mouth off in grandly noxious fashion.

The public interest in limiting the potential harm firearms can do is not deemed to outweigh the private interest in liberty to own and carry them. That puts us a long, long way from acknowledging the harm words can do. At best, we can acknowledge hateful intent aggravates other violence, much the way we acknowledge using a gun does.

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