Do We Need to Take the Second Amendment Away to Protect the First?
TL;DR
Short answer: No. Repealing the Second Amendment is neither necessary nor realistic to safeguard free speech and assembly. The real work is to regulate guns in ways our Constitution already permits (especially in “sensitive places” like polling sites, campuses, and protests), enforce laws against threats and intimidation, and design public-safety policies that reduce political violence without muzzling speech.
The Core Tension
The First Amendment guarantees speech, press, religion, assembly, and petition; it protects even inflammatory ideas unless they cross narrow lines like true threats or incitement to imminent lawless action. That’s why hateful or harsh rhetoric is generally legal, but a doxxed threat—“I’m coming to your house tomorrow with a rifle”—is not.
The Second Amendment protects an individual right to keep and bear arms—first affirmed in modern doctrine by District of Columbia v. Heller (2008), incorporated against the states in McDonald (2010), and reframed for public carry in NYSRPA v. Bruen (2022). After Bruen, courts judge gun rules by history and tradition while recognizing governments may restrict firearms in “sensitive places.”
So the question isn’t whether one Amendment must die so the other can live. It’s how to reconcile the two where they collide—especially at protests, polling places, campuses, and civic forums where the presence of firearms can chill speech or escalate conflict.
What the Data—and the Streets—Say
America’s gun death toll remains staggering even as 2023 saw a modest decline from 2022. CDC-based analyses and Pew Research estimate about 46,700 firearm deaths in 2023, with suicides comprising the majority and homicides also at historically high levels. This is the backdrop to fears about political violence.
Meanwhile, we are living through a raw period of explicitly political violence. The assassination of conservative activist Charlie Kirk in Utah in September 2025 intensified concerns; researchers tracking incidents report a sharp rise in politically motivated attacks in 2025 compared with last year. Whatever one’s politics, assassination and intimidation are the enemies of democratic speech.
At the level of mass participation, research from ACLED and allied scholars finds that armed demonstrations are far likelier to turn violent than unarmed ones; a 2021 analysis concluded that events with at least one armed participant were nearly six times as likely to become violent or destructive. That is exactly the kind of “chilling effect” First Amendment lawyers worry about: people stay home rather than risk speaking near guns.
Legal scholarship has been naming this clash for years: guns at protests often suppress speech rather than enable it. Courts generally do not treat carrying a gun at a rally as expressive speech, and multiple scholars argue that protest sites can be constitutionally regulated—indeed classified as sensitive places—to protect the “peaceable” part of peaceable assembly.
Would Repealing the Second Amendment Fix This?
Even if one believed repeal was desirable, it is virtually unattainable under Article V: you need two-thirds of both houses of Congress and ratification by three-quarters of the states (38 states). No amendment has ever been proposed by a states’ convention; every successful amendment has cleared the congressional supermajorities. In today’s polarized environment, repeal is a political nonstarter.
That constitutional reality matters for strategy. If the aim is to protect First Amendment life—the ability to gather, argue, advocate, and vote without fear—the fastest and most lawful tools are those the Supreme Court already contemplates: targeted regulation of guns in limited, high-stakes civic spaces and rigorous enforcement against threats and intimidation.
What the Courts Are Already Saying
After Bruen, states began redrawing carry laws. Courts are actively sorting the boundaries:
- In September 2025, the Third Circuit largely upheld New Jersey’s “sensitive places” restrictions (parks, libraries, museums, beaches, casinos), reversing a lower court and emphasizing historical analogues for keeping guns out of civic spaces.
- Other litigation is cutting the other way. A recent decision from the Seventh Circuit scrutinized bans on carry in public transit, finding the state hadn’t met the historical-tradition burden. The map is contested and evolving.
The through-line from the Supreme Court, however, remains: “sensitive places” are real, and courts may reason by analogy to identify modern equivalents (e.g., polling places, government buildings, perhaps protest perimeters where the state provides security). That gives policymakers constitutional room to protect speech without abolishing gun rights.
Where First and Second Collide: Protests, Polls, Campuses, Capitols
Polling places. A growing number of states restrict firearms at polling sites and ballot-counting centers to prevent voter intimidation. By spring 2024, at least 22 states had adopted some form of polling-place gun ban, with several new laws in the past two years.
Demonstrations. Many states (and some cities) prohibit guns at political protests or on Capitol grounds. Advocacy trackers show that nearly half the states have at least some policy limiting carry in capitols and/or at demonstrations. The landscape is patchwork—another reason for clearer, uniform rules that protect assembly.
Government and civic buildings. Federal law already bars guns in many federal facilities and on Capitol grounds; these are classic “sensitive places.” Similar state-level rules are widely defensible under Bruen.
Campuses. Universities balance academic freedom with security. While state policies vary, the First Amendment “marketplace of ideas” rationale supports classifying certain campus venues as sensitive, particularly when the institution provides security for high-profile speakers.
The “Chilling Effect” Is Real—and Actionable
It doesn’t take a felony threat to silence speech. A visible rifle at a rally can deter counter-speakers or persuade timid citizens to stay home. Legal scholars, civil-society analysts, and conflict monitors have documented how armed presence curtails expressive freedom and raises the risk of violence. None of this requires repealing the Second Amendment; it requires drawing lines where guns and speech collide.
The First Amendment itself provides a ready-made toolkit:
- Incitement and true threats. Police and prosecutors can—and should—act on specific threats or incitement to imminent violence, which are not protected speech. That enforcement protects speakers and listeners without touching gun ownership per se.
- Time, place, and manner rules. Governments may impose content-neutral limits on the where and how of gatherings—e.g., permits, routes, buffer zones—so long as ample alternatives for expression remain. That logic works alongside “sensitive place” gun rules. (While Bruen replaced interest-balancing in gun cases with history-and-tradition review, the concept of place-based limits still lines up with the Court’s own sensitive-places language.)
A Practical, Constitutional Plan to Protect Speech—Without Repeal
- Codify “No-Guns” Rules at Democracy’s Front Doors. Extend and harmonize bans on firearms at polling places, ballot drop boxes, vote-counting centers, legislative chambers, and courthouses—all defensible as “sensitive places” with clear historical analogues. Courts are already upholding many such designations.
- Create Protest-Safety Standards that Travel. Authorize jurisdictions to declare temporary gun-free perimeters around permitted demonstrations where police provide security for all sides—like the way we regulate vehicle traffic or barricades for parades. Scholarship supports classifying protests as sensitive when the state undertakes crowd safety; and armed protests are empirically riskier.
- Enforce Threats and Intimidation—Hard. Bring more cases under true-threat statutes; prioritize doxxing-with-threats and targeted harassment of election workers, journalists, professors, and activists. This is straight First Amendment doctrine: threats are not protected.
- Modernize Permitting to Deter Bad Actors, Not Peaceable Carriers. Bruen struck down “may-issue” carry regimes that required special need, but it did not bar objective “shall-issue” requirements (training, background checks, disqualifiers). Thoughtful, objective permitting aligns with history and can reduce risks at civic events. (Courts continue to litigate boundaries, but sensitive-place bans and objective screening remain viable.)
- Adopt Risk-Based Tools With Due Process. Extreme Risk Protection Orders (ERPOs)—temporary, court-ordered disarmament of persons who pose a credible risk—do not censor speech and fit a long tradition of disarming dangerous individuals. Due-process-heavy versions are most defensible post-Bruen. (Courts disagree over certain categories like nonviolent felons; precision matters.)
- Harden Civic Infrastructure, Not Debate. Invest in nonlethal crowd-management training, de-escalation, and physical design (e.g., controlled entrances) for town halls and campuses. That protects speakers and gun carriers’ rights without curtailing expression.
- Keep the Public Informed, Not Afraid. Even as day-to-day gun violence is vast, deadly public mass shootings fluctuate and sometimes decline. Public risk perceptions should be grounded in data to avoid reactionary laws that overshoot. (In 2025, analyses noted unusual lulls in certain categories of mass public shootings; policy evaluation should watch trends, not headlines alone.)
Why Repeal Is the Wrong Tool
Legally, Article V makes repeal extraordinarily difficult; the ERA’s long, tortured path shows how hard it is even for broadly popular ideas to clear the finish line. Politically, a repeal campaign would likely harden polarization, feeding the very cycle of retaliatory violence we want to defuse. Substantively, American gun harms are heterogeneous (suicide, domestic violence, street gunfire, extremism); a blanket repeal doesn’t automatically produce tailored fixes, whereas place-specific and risk-specific rules can.
The First Amendment value at stake is participatory parity—the ability for ordinary people to speak, listen, organize, and vote without fear. That goal does not require erasing an enumerated right. It requires refereeing the space where rights meet.
Answering the Hard Objections
“Isn’t a gun at a rally just another form of expression?”
Courts generally say no: carrying a firearm is not speech under the First Amendment. Even if it conveyed a message, government can regulate conduct that threatens others’ rights (like the right to assemble peaceably). This is precisely why content-neutral, place-based limits survive scrutiny.
“Won’t bad guys ignore ‘gun-free zone’ signs?”
Some will. But the question is margins: clear, enforceable boundaries reduce the number of firearms in volatile crowds, lower the chance of misunderstandings or escalation, and give police a lawful, objective basis to intervene before speech turns into bloodshed. The empirical risk differential between armed and unarmed demonstrations supports this.
“Doesn’t Bruen kill all modern regulations?”
No. Bruen reshaped the test but affirmed the concept of “sensitive places” and the use of historical analogies to justify modern limits. Appellate courts are upholding many such restrictions today, even as other rules fall. Policymakers should legislate with that caselaw in view.
A Constitutional Synthesis
Think of American rights as a pluribus that must function in the unum:
- The First Amendment guarantees that the town square is loud, contested, and fundamentally safe for disagreement.
- The Second Amendment protects self-defense and, within limits, public carry.
- Democratic institutions (elections, legislatures, courts) are sensitive places where the government’s duty to secure speech and political participation peaks.
When a heavily armed presence deters speakers or intimidates voters, government has not just permission but an obligation to set rules that preserve the conditions for free speech. The Supreme Court’s own doctrine leaves space for that; the data argue for it; and the lived experience of this political moment demands it.
Bottom Line
We do not need to take the Second Amendment away to uphold the First. We do need:
- Clear, constitutional “no-guns” rules at protests, polls, and civic venues;
- Aggressive enforcement against threats and intimidation;
- Objective, risk-focused firearm policies compatible with Bruen; and
- Investment in democratic infrastructure so that speech—not gunfire—decides our politics.
If we want the town square to feel like a forum, not a crossfire, the solution isn’t to erase a right. It’s to govern the shared spaces where rights meet—so the First Amendment can do what it was written to do: let the people talk.
