Donald Trump’s 2nd Amendment Comment: Protected Under 1st Amendment?

There’s no question that Donald Trump is provocative. But at a North Carolina rally on Tuesday, he told a crowd of supporters that gun rights proponents could do something to prevent the selection of the kind of judges preferred by Hillary Clinton.

“Hillary wants to abolish–essentially abolish–the Second Amendment,” Trump said. “By the way, if she gets to pick her judges, nothing you can do folks. Although the Second Amendment people, maybe there is, I don’t know. But I’ll tell you what, that will be a horrible day.”

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In response to Trump’s comment, Clinton said, “Words matter, my friends. And if you are running to be president or you are president of the United States, words can have tremendous consequences. Yesterday we witnessed the latest in a long line of casual comments from Donald Trump that crossed the line.”

The U.S. Secret Service talked to the Trump campaign about his comments more than once. So does this rise to the level of inciting his supporters to violence against his opponent? Or is this protected speech under the First Amendment?

Colleen Connell, executive director of the ACLU of Illinois, describes his remarks as “a word salad,” and complicated to fully analyze. From a legal standpoint, however, she believes his words are protected under the First Amendment.

“Based on years of judicial precedent, it doesn’t pass the legal test for incitement of violent conduct,” said Connell. “It does not show an intent to incite imminent lawless action.”

Harold Krent, dean and professor of law at Chicago Kent College of Law, called Trump’s statement “incredibly irresponsible,” but shares the same opinion as Connell. Krent argues that the sheer ambiguity of the comment make it difficult to deem as a real threat.

“We don’t know what it means,” said Krent. “I think you could read this as a call to violence, but you could also read what he said as simply, ‘Go to the ballot box, assert your power, stand up for what you believe in.’”

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