Lawsplainer: No, Donald Trump's "Second Amendment" Comment Isn't Criminal

Donald Trump, against all advice and rumors of pivot, will continue to be Donald Trump. Today, at a rally, he uttered a line that some have taken as a suggestion that Hillary Clinton (or possibly judges) could or should be killed if they did not support Second Amendment rights:

At a rally here, Mr. Trump warned that it would be “a horrible day” if Mrs. Clinton were elected and got to appoint a tiebreaking Supreme Court justice.

“If she gets to pick her judges, nothing you can do, folks,” Mr. Trump said, as the crowd began to boo. He quickly added: “Although the Second Amendment people — maybe there is, I don’t know.”

Trump's staff quickly issued a press release saying that this comment was merely a reference to the vigorous political activism of Second Amendment fans, not to violence. I express no opinion about what Trump "meant": I think trying to parse his Joycean ramblings is usually pointless.

But let's say we choose to interpret this as Donald Trump suggesting that, if Clinton appoints judges hostile to the Second Amendment, she or the judges could be shot.

Is that a crime? Is it outside the protections of the First Amendment?

No, I'm confident that it isn't.

People are referring to this as a threat, but it's more like incitement. Under any interpretation Trump isn't saying he will shoot anyone; he's suggesting that someone else might — and perhaps implying that they should.

Attempts to punish incitement to violence are governed by the "clear and present danger" test articulated in Brandenburg v. Ohio. Brandenburg involved a Klan rally at which a speaker said "We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance [sic] taken." He was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." In one of the most important First Amendment decisions of the last half-century, the Supreme Court overturned the conviction. "[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Thus, since the Klansman wasn't advocating imminent lawless action and likely to incite it, his words were protected by the First Amendment. By the same logic, Trump's comment is protected. It's conditional, it's directed to something that will happen (at the earliest) more than six months in the future, and it's not likely to produce action. I don't think this is a close call at all.

What if we stubbornly treat Trump's comment as a threat? Isn't it a federal crime to threaten a major presidential candidate?

Under the true threat doctrine, it's still protected by the First Amendment.

Consider the Supreme Court's ruling in Watts v. United States. At an anti-draft protest, Watts said he would resist the draft and that "If they ever make me carry a rifle the first man I want to get in my sights is L. B. J." He was convicted of threatening the President. The Supreme Court reversed the conviction. The court noted that the statement was made at a political rally and drew a laugh from the crowd. "We agree with petitioner that his only offense here was 'a kind of very crude offensive method of stating a political opposition to the President.' Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise."

Since Watts courts have grappled with whether the government must prove that a threat is just objectively threatening (meaning, a reasonable person would take it as an expression of intent to do harm) or also subjectively threatening (meaning, the speaker intended that it be taken that way), and that issue is not fully resolved. Thankfully we don't have to delve into the fetid swamp that is Donald Trump's subjective intent, because I don't think the objective test is anywhere close to being met. Like Watts, the statement was spoken at a political rally, and like Watts, it drew laughter, and like Watts, it was hypothetical and conditional. Moreover the "maybe there is, I don't know" softens it substantially. At most it's the sort of hyperbole that Watts protected. It's not anywhere close to the sort of extreme and specific statements that have been taken as threats in the political context, like the abortion provider "wanted" posters in Planned Parenthood v. American Coalition of Life Activists or the nutty white supremacist in United States v. Turner (both of which show how courts sometimes blur the lines between incitement and threats). Again, with respect to dissenters out there, I don't see this as a close call.

In America, under the First Amendment, I can say something like "if Donald Trump gets elected, someone should assassinate him for the good of the nation." That statement may be immoral, and destructive of the very American values it purports to defend, but unless it calls for imminent action or expresses an objectively credible intent to do harm, it's protected speech.

Last 5 posts by Ken White

Comments

  1. Craig says

    I guess that makes sense. Trump's statement, in his usual style, was vague enough to have "plausible deniability" ("I didn't mean it that way", even though we can guess that he probably meant it exactly that way), which is typical of his cowardly approach to extreme statements. And it does fall short of actually calling for immediate violence. Nevertheless, I wouldn't be surprised if the Secret Service wants to have a word with him about it, just as they did with Ted Nugent when he said something similar about Obama.

  2. says

    Well put. If I said, "Some pro-NATO guy could send weaponized anthrax to Donald Trump," same protection.

    Hey, media, whether he's even conscious about it or not, Trump continues to get free airplay from you, whether it helps him or not.

  3. Paradigm Spider says

    Where does "Will no one rid me of this turbulent priest?" fall?

    It's the classic incitement, but under the laws in question I would not hesistate to classify it as protected speech.

  4. Levi Roth says

    Attempts to punish incitement to violence are governed by the "clear and present danger" test articulated in Brandenburg v. Ohio.

    You mean, I assume, the "imminent lawless action" standard. "Clear and present danger" is the weaker standard from Schenck, which was overturned by Brandenburg.

  5. Kemn says

    It's not criminal, but is part of a pattern of immature and irresponsible statements by him.

  6. says

    It seems that the level of influence of the speaker should probably be taken into account. If some random person on the street says "someone ought to beat that guy up", that is one thing, but if a person with significant influence did so, that is very different in the world, and probably should be in the law.

  7. Patrick Maupin says

    As ye sow so shall you reap. Trump's opponents are listening and watching at least as carefully as his supporters.

    BTW, have they actually released Hinckley yet? It was all over the news about how they were gonna, but the date's come and gone and I haven't noticed anything.

  8. Matthew Cline says

    While it might not be illegal, how likely would it be for an average person to be arrested for saying the sort of thing Trump did about a presidential candidate?

  9. Raucous Indignation says

    I've read a lot of the media coverage on this. But I haven't seen anyone, any pundit, say that Trump's statement was "criminal." Reckless, inciting, irresponsible, loony, even "a reckless call for violence." But not criminal. What triggered you to write this, Ken? It seems like low hanging fruit for a writer of your abilities. The post preceding this one is ample proof of that.

  10. says

    I was going to say that, while not criminal, this and other comments made by the Orange Cheeto are at least reckless.

    Then I realize that he phrases these things very, very carefully. In his mind, at least, all the word salad vagueness gives him ground to deniability. And if some gun-totin' Trump admirer out there does something drastic, well…

    "Will no one rid me of this (uppity wommin)?" indeed.

  11. uncle joe says

    I feel like if people read your blog semi-regularly, by now they have mostly absorbed the point that saying "Hmm, [act of violence] wouldn't be the worst thing in the world, now would it?", while spreading one's hands suggestively and winking, is not a criminal action.

  12. Will says

    Or when Cleaver said — on television — "I would consider it an excellent thing if Richard Nixon were to be killed."
    Or is it different when someone only threatens a president the left dislikes?

  13. says

    @azteclady: "Careful" is not a word I would use to describe Trump, but he *does* seem to have a good grasp on the schoolyard technique of choosing words so that everyone knows exactly what he means but then he can turn around and feign innocence. "Blood coming out of her wherever — what? Her nose! I meant her nose!"

    @Will: Dude, what are you talking about and who are you talking to?

  14. Lokiwi says

    "Will no one rid me of this turbulent priest?" is probably better understood as similar to a vague hit order from a mafia boss. Like the kiss of death. And would be well outside the protections of the 1st. A king wondering why you aren't dead yet is not the same as an asshole shouting nonsense at a crowd. It's all about context.

  15. says

    Not a king, you are correct, Lokiwi.

    However, the asshole is the nominated candidate for President of one of two major political parties in the country, shouting nonsense to a crowd that more closely resembles a lynching mob than peaceful assembly.

    And the context is Trump himself saying he would be happy to punch a protester (at one of his rallies in Las Vegas, back in February) in the face himself.

    I agree, it's all about context.

  16. andy says

    Exactly. Trump kept going on and on and on about punching someone in the face, and then guess what happened? Someone got punched in the face!

  17. MCB says

    Chaon,

    Definitely RICO. Probably also unfair trade practices. Maybe trademark issues too.

  18. Josh says

    Regardless what was said, the second ammendment is indeed in place to protect the rights of the people. If the government turns hostile towards its people or their rights then the second ammendment MIGHT come into play depending on far the tyrannical government is willing to go. And a government becomes tyrannical when hostile towards any rights of the people, not just the ones they agree with. In that sense he wasn't far off.

  19. MacCruiskeen says

    I would agree that Trump, directly, will probably not face any legal repercussions from this. He won't be arrested, won't go to jail. Are unfavorable things being said about Trump right now by Hillary Clinton's Secret Service detail? I would put money on that. This is how stupid Trump is: he doesn't just piss off his political enemies, he has to go and piss off the people who are protecting him personally.

  20. Jay says

    Raucous Indignation

    I've read a lot of the media coverage on this. But I haven't seen anyone, any pundit, say that Trump's statement was "criminal." Reckless, inciting, irresponsible, loony, even "a reckless call for violence." But not criminal.

    Sen. Chris Murphy (D-Conn.) says Donald Trump's controversial line about "Second Amendment people" qualifies as an assassination threat against Hillary Clinton

    Casual reading assignment tonight: federal criminal statute on threatening to kill a candidate for President.

  21. says

    Matt Knox, no, assassination market bets wouldn't be illegal, beyond if gaming in general is illegal where you live or there's a carve-out law …. unless you paid someone to bring off the type of assassination on which you bet. Now, how would collect, if it were legal? You and the game owner would be arrested as "persons of interest."

  22. Lokiwi says

    @azteclady

    a crowd that more closely resembles a lynching mob than peaceful assembly.

    No. Just…no. If that's what you have to contribute, maybe don't?

  23. Procopius says

    While I certainly agree that this is the way the law used to be, I am not in the least confident that a prosecutor could not claim his incitement might cause some terrorist group to take action and I'll bet there's a nifty new law on the books that the judge would uphold and would send him away. First Amendment rights are much more fragile than they used to be.

  24. Tal says

    Perhaps not criminal, but were someone to come to harm from this, perhaps the civil precedent of the Metzger case would apply?

    Seems to me that if an influential leader of a group known for violent rhetoric suggests that his followers actually do some violence, he should be liable for them following that suggestion, civilly, at least. Trump has presented himself as a commander–an authority figure–and it could plausibly be said that his followers believe his suggestions to be orders to action. That surely has to count the same way Metzger's WAR leadership did.

  25. Eric Atkinson says

    Has anyone considered that Trump may have been referring to people whom will not comply with any misinterpretation of the Second Amendment by a stacked SCOTUS.
    I will not comply.

  26. Alec McFarlane says

    Isn't this much ado about nothing? Those 2nd Amendment people? How are they different than those 14th Amendment people? And wasn't Lincoln killed in part because of the 14th Amendment?

    I see projection and confirmation bias. In black and white transcription it is plain, what people think it means is called speculation.

    The legalese is more relevant to the author's closing example than to what Trump actually said.

  27. Llawen says

    Given its context (televised) and the craziness of those who support Trump (who seem, online, to have significant impairment to their rational thought process as well as an inability to delay gratification; don't believe me, just try talking to one in an online thread) I believe that this particular set of circumstances might just not be protected speech. I hope that we never have to test the theory.

    And yeah, I'm a lawyer and have read the case law. I'm not convinced that it all applies. "Clear and present" is something I hope and pray that we won't have to determine.

  28. CHH says

    Moreover the "maybe there is, I don't know" softens it substantially.

    You know, for me, that part had the opposite effect.

    Once I actually heard him say it – "Although the second amendment people, maybe there is, I don’t know." – those first five words sounded to me like he was suggesting if Second Amendment folks went to the polls en masse, they could keep her out of office. But the way he altered his voice – pitch, cadence, tone, etc. – for the last six words, to me that (to adapt your phrase) hardened it substantially.

    I don't know what was going through his head. I don't know what he was thinking. But I got the impression that he intentionally said what he said, intentionally said it that way, knowing full well that it could be taken in multiple different ways, hoping that it would be taken in multiple different ways.

    I'm not trying to say you're wrong in your legal interpretation, Ken. Far from it. After all, I am not a llama. Just wanted to point out that what may soften a phrase for one may harden it for another. (Which still doesn't have any impact whatsoever on the legal standing. But whatevs.)

  29. Raucous Indignation says

    Jay, I find it sadly tiresome when someone with limited reading comprehension like yourself suggests that I should have a reading assignment. Try reading my comment again. This time you should actually try to understand what the words mean when taken as discrete sentences and the theme of the paragraph.

  30. David Lee says

    I do not hear demands to have him arrested, but merely investigated and questioned by the USSS just like they would do if any of us made those comments. But Hillary used non-state email servers, like everyone before her, so both sides are pretty bad and let the GOP win!

  31. En Passant says

    “If she gets to pick her judges, nothing you can do, folks,” Mr. Trump said, as the crowd began to boo. He quickly added: “Although the Second Amendment people — maybe there is, I don’t know.”

    Next up: Ms. Clinton halfway counters in the ongoing half armageddon battle of halfwits.

    "When I pick my judges there won't be any Third Amendment absolutists. They might consider exceptions when the dwellings belong to loudmouthed blowhards with too much money and not enough good taste and common sense. I don't know."

    At least it's fun to imagine.

  32. Bob Tweed says

    It was a joke — a very-very similar joke Joe Biden made regarding Obama and protecting his 2nd amendment rights with his Beretta. This was during the 2008 campaign when fellow candidate Hillary Clinton, explaining something slightly less than anything resembling a joke, countered that she'd stay in the race because, y'know, shit happens and Obama might get assassinated (hint-hint).

  33. Lagaya1 says

    Eric Atkinson-

    People who use "whom" these days, most often use it incorrectly. It would be less jarring to drop it entirely, as most people of this century have done.

    Now a bout Trump… I quit listening long ago.

  34. Julian Adorney says

    So what about former CIA head Michael Hayden's comments, "If someone else had said that said (sic) outside the hall, he'd be in the back of a police wagon now with the Secret Service questioning him."

    Given that this is cut-and-dry free speech, is Hayden's comment (to put it delicately) a little…extra-legal? Or is having the Secret Service detain and investigate someone who called for assassinating a politician (assuming, hypothetically, that's what Trump did) constitutional?

  35. Scared e. cat says

    Long time lurker, first time commenter. I took this to be a reference to needing a wronged party to bring suit, or put pressure on congress for an amendment. I.e. if the scotus adjudicated a 2nd amendment challenge in a way some viewed as unconstitutional, only the wronged party – "second amendment people" would be in a position to either elect congressional people who would effectively nullify the adjudication via law or amendmend, or else elect a pres who could make an appointment more to their liking and then bring another suit so as to get a reversal. Either way would require action on their ("second amendment people ")part.

    As a brief, but trenchant aside, the constant vilification of those voting for trump re "violence " ignores the fact that no democrat this year has been shot, stabbed, chased by a mob, pulled from their car, had their car destroyed, had arson committed against them, or been beaten with a crowbar by a man 20 years their junior for wearing a shirt.

    I have had to instruct my children not to discuss political matters, or mention the name Trump in public, because it is possible they could be hurt. For the first time in 35 years, I am afraid to have a sign or a bumper sticker or a shirt.
    Oh, and just because I know its coming, I do have a degree, my sister is happily married to a black man, my 7 yr olds best friends are 2 kids whose parents legally immigrated 10 yrs ago from Guatemala, and my daughter is engaged to a gem of a guy who's Ba'Hai . All of us adults in that list are voting Trump. All of us have discussed how much fear we have making that info public. The shame we feel telling our kids to keep politics at home, because people xould "take it the wrong way" and "get upset".
    Where is my "right to be wrong"?
    I voted for Obama, damnit…..TWICE!

  36. capnkrunch says

    Raucous Indignation

    Jay, I find it sadly tiresome when someone with limited reading comprehension like yourself suggests that I should have a reading assignment. Try reading my comment again. This time you should actually try to understand what the words mean when taken as discrete sentences and the theme of the paragraph.

    Why the indignation? Jay actually answered your question properly. That was a quote from Senator Chris Murphy on Twitter implying that Trump's comments were criminal.

  37. Jay says

    @Raucous Indignation: Maybe I should have a made it clearer that the quote was a Tweet from Sen. Chris Murphy (D-Conn.)? I mean, did you think I was quoting myself?

    I'm assuming since Sen. Murphy thought a criminal statute was applicable in this situation, he surmised a crime had been committed?

    Ken knew someone, somewhere would suggest this. Thus….blawg post.

    Then again, it appears I need to work on some reading comprehension (which I hear is limited).

    @capnkrunch: Thanks.

  38. Bob says

    Josh..any rights? Any rights? Are you sure you want to go there? Imagine the world we could end up living in.

    So gun rights activists take up arms to defend their right to open carry. Meanwhile, evangelicals take up arms to protect their bakeries from gay weddings. Gay people take up arms to protect their right to adopt children. And women who want to end their pregnancies take up arms to keep abortion clinics from being closed by the state.

    Maybe drug addicts even take up arms to protect their right to put what they want in their own bodies. Jaywalkers take up arms to protect their right to stroll down public property as they please.

    Unless you're going to give a very idiosyncratic definition of "rights" (such as, 'those enshrined by the constitution, according to my personal interpretation'), inviting people to take up arms to protect them is a pretty dangerous road you're walking down.

    No, I prefer that people defend their rights through protest, petition, voting and lawsuits. It's messy and difficult, but has a lower death rate.

  39. says

    Scared.e.Cat

    And Trump protesters have been hit, kicked, punched, pepper-sprayed, and so on. Believe me, I do not want any harm to come to Trump supporters, and was absolutely appalled at what happened in San Jose. But the notion of Trump supporters as being violent does not come out of nowhere.

  40. Scared e. cat says

    Pat, I actually wasn't referring to san hose. All of those things have happened , with the exception of the last, tens of times.
    One protester was beaten up in nh, one was punched in las vegas,one was punched in Fayetteville, one was sucker punched in tuscon. One young woman was pushed in Kentucky.
    It is, by the numbers, far safer to be a hillary voter, a gary voter, a jill voter, or an anti trump protester.
    Now, I am most likely suffering from some level of confirmation bias.
    But isnt it interesting that this is not a story, anywhere other then far right coo-coo sites? That when it is even MENTIONED, it is only within the context of how much we deserve it for our political opinions?
    One would think the systematic intimidation of any group of American voters would be of interest. How ever small. However misguided.

    I dont think for a second that you, and a lot of people ARE appalled by san hose. I also think people are honestly not aware how pervasive and frightening this is.
    Thanks 4 replying tho. :)
    This kind of made me feel better just to tell.

  41. Semper Why says

    Projection, nothing more. 2nd Amendment rights supporters are by far more peaceful than just about any other politically motivated group out there. You don't see the NRA marching in Missouri, throwing rocks at the police. Gun Owners of America don't block highways, take over libraries, storm the stage at gun control supporter's rallies or any of that crap.

    There are 5 million of us. If we were a problem, you'd know it by now.

  42. David Lee says

    I am amused by certain people claiming Trump is "joking." The NRA didn't see it as a joke, neither did any Trump staff in follow up questions even the next day. These Trump supporters wish away everything bad and come up with any excuse.

    These people are red hot mad that Clinton and Obama don't say radical Islamic terrorism. Phrasing only matters if you can use it against your enemy to them.

    Then the other type of Trump supporter, very worried about violence… against them Completely unaware that you do get angry blow back after calling millions of people murderers, rapist, anti-American, and terrorist sympathizers.

  43. Scared e. cat says

    David?get your sources straight. Neither trump nor his campaign ever called this a joke. Paul Ryan did, after explaining he hadnt heard the remarks in question andhaving them paraphrased to him by a reporter. Several nevertrump blogs did, but they tend to veiw everything he does as a bad joke.

    As for "The other type of Trump supporter", which I choose to see as directed at me, considering its placement and tone, being " very worried about violence… against them " you should realize, its not JUST fear for my own, or even my extended friends and family's saftey that worries me. Its the deeper implications of the acceptance OF that fear as right, good, and justified by the "other" side.
    Think about what just happened here. I described american citizens, IN AMERICA, as being afraid to tell anyone but close friends and family who they are thinking of voting for. Shootings, stabbings, beatings, vandalisim, arson- all due to a political stance- are shrugged off because " you do get angry blow back after calling millions of people murderers, rapist, anti-American, and terrorist sympathizers."
    Wow.
    You just minimized someone being SHOT because they were going to vote "wrong" by calling it blowback, and then JUSTIFIED it. I dont even know what to call that.

  44. Cactus says

    You do have to enjoy a "direct, tell it like it is" politician who has a small army of people explaining "Well what he really meant was" going off nearly every single day.

    But then that's the magic of all this isn't it. This argument will now completely overshadow the real issue surrounding those terror watchlists and his own gun control policies. It completely overshadows his own vendetta against freedom of speech and even lends sympathy to his anti-media arguments. Even the simple argument over whether it's socially acceptable for a political candidate to talk like that has now been unbalanced thanks to the overzealous reaction to it.

    Even funnier, once again Trump has inadvertently helped push political correctness through going into a grey enough area that misinformation sprays out everywhere. (Yes of course he's free to say it, but he's supposed to be smart enough to see this coming).

  45. anon says

    I don't know, but Americans need to use the 2nd amendment in relation to Trump.

    I am so glad that prick has made death threats that have been OK'd, it means we can all do it towards him.

    Ironically if the less-awful side of US politics started to allude to death of opposition, you would get a Mair-style incident as the reactionaries cannot handle not being the most vile slice of humanity on the planet. Yes, I know of DAESH, and to think that Trump and his supporters are significantly different to what drives DAESH would be denial, or even worse, and tacit acknowledgement of white supremacy.

    Even though I feel confident writing this comment, I'm still gonna submit it over TOR, just in case. That is the level our democracies have reached, and there is no sign things will improve. Trump will not help, nor those that support him. He is a rich white guy who wants the power for himself or his chosen class. And that class is not you! Nor me. But he will let people think he is on their side so that he can screw you over later.

  46. Czernobog says

    Yeah, one of the amusing things about this clusterfuck of a presidential race is how much the guy who "isn't afraid to speak his mind" and "tells it like it is" loves to use phrases like "maybe I don't know" and "people have said."

  47. says

    I think it's just fantastic that the Republican candidate for President of the US needs multitudes of supporters translating his words to the rest of the world.

    "Well, you see, he didn't mean that, he meant this other–usually less offensive/stupid/false–thing."

    edited to add: which, I see now, is what Cactus said above. Mea culpa.

  48. hymie! says

    "My fellow Americans, I'm pleased to tell you today that I've signed legislation that will outlaw Russia forever. We begin bombing in five minutes." The comment may have been a joke, but the response was anything but comical.

    IMHO, the point is not that this particular quote was or was not a joke / was or was not a violation of the law. The point is that a person who aspires to be the President of the United States has to be careful of what he says and how he's perceived, by his allies and by his enemies.

  49. James says

    Candidate Obama used the 'bring a gun to a knife fight reference in 2008. In that light, Trumps comments seem notable but not exceptional for political campaigning.

    'That’s exactly what Barack Obama said he would do to counter Republican attacks “If they bring a knife to the fight, we bring a gun,” Obama said at a Philadelphia fundraise. “Because from what I understand folks in Philly like a good brawl. I’ve seen Eagles fans.'

    http://www.snopes.com/bringing-a-gun-to-a-knife-fight/

  50. says

    Alec, tho neither amendment had been passed yet, or even proposed yet, Lincoln was actually assassinated shortly after expressing support for the idea that would become the 15th amendment, not 14th.

  51. Alpha Dogue says

    @James: Your use of the "knife to a gunfight", which has been extensively restated by the Right, is tiresome. You are comparing a well-known expression to a veiled and potential threat that is NOT an expression.

    @Scared.e.cat: "It is, by the numbers, far safer to be a hillary voter, a gary voter, a jill voter, or an anti trump protester." Anecdotal, at best. Could we actually have a formally analysis. Apart from your short list, I can recall many non-Trumpaloos heckled, bullied and attacked at pro-Trump rallies. As opposed to you, I don't turn my anecdotal evidence into some sort of factual presentation.

  52. Scott says

    Scared e. Cat, I am ashamed and apologize for your fear of openly supporting The Don; although I do not apologize for my severe dislike of Trump. My well educated sister, bro-in-law and grown (voting age) children all are Trump supporters and I do not love them any the less for their opinion. I do wonder how you and they explain to the youngsters that it is not okay to be a bully, but it is okay to vote for one. (And I am not trying to start any arguments, as stated well by others: let's have a do over, as both parties have serious flaws).

  53. Total says

    Candidate Obama used the 'bring a gun to a knife fight reference in 2008. In that light, Trumps comments seem notable but not exceptional for political campaigning.

    Because using a metaphorical reference from a movie is exactly the same thing as directly invoking the idea of violence.

    Or, wait, no, it's not.

    On another note, how did this:

    One young woman was pushed in Kentucky

    turn into this:

    Shootings, stabbings, beatings, vandalisim, arson-

    If you've got some shootings of Trump supporters for their political views to link to, I'd love to see them.

  54. James says

    If you've got some shootings of Trump supporters for their political views to link to, I'd love to see them.

    "Late last month, an unidentified 60-year-old man was shot in the bar after debating with another regular patron the suitability of Donald Trump to serve as president. Police said Darnell Hall, 45, shot and wounded the Trump supporter in the leg after their presidential debate turned increasingly testy."

    http://www.cleveland.com/morris/index.ssf/2016/08/trump_bar_supporter_shot_for_s.html

    Here is a video of Trump supporters being attacked in SanJose.

  55. princessartemis says

    @Total

    "Because using a metaphorical reference from a movie is exactly the same thing as directly invoking the idea of violence"

    "Bringing a gun to a knife fight" and then going on to say how much a crowd likes a brawl is pretty damned direct in its invokation of the idea of violence. It brings to mind, le gasp! Brawls and guns at knife fights! None of those things are peaceful tea and crumpets. It doesn't incite violence or anything, but it absolutely does directly invoke the idea of violence.

    On the other hand, "Although the Second Amendment people — maybe there is, I don’t know,"–if it invokes any ideas of violence, it is quite indirect about it. A dumb as hell thing to say, but if you're reading that as a direct invokation of the idea of violence, it speaks volumes about your view of Second Amendment people as inherently violent.

  56. KeithB says

    princessartemis:
    "On the other hand, "Although the Second Amendment people — maybe there is, I don’t know,"–if it invokes any ideas of violence, it is quite indirect about it. A dumb as hell thing to say, but if you're reading that as a direct invokation of the idea of violence, it speaks volumes about your view of Second Amendment people as inherently violent."

    OF course it is indirect, it is a dog whistle. Remember "Second Amendment Solutions"?

  57. Josh says

    Yes, any rights given to you by the Lord above. Lets not act like an idiot. I said from a tyrannical government. Now about your bakery example. I find it to be just outstanding that you only talked about Christians refusing service while it's a bigger problem with muslim bakeries. Where's everyone's concern then? And let's not play what if games. Let's deal in real life. A few Christians may not want to serve those who don't agree with them, they are Jerks. Waa. At least they're not throwing people off buildings. And let's be clear on a business. When you open a business that is your right but, it is you're responsibility to follow the associated rules. That being said, you then believe that one irresponsible person should negate the rights of everyone? Are you telling me that because someone who loses their license for driving under the influence (driving isn't a right by the way, unfettered travel is) and shoots the judge who took their license is the same as those who would stand against a government seeking to shackle it's people? Wow. The fact of the matter is these law abiding citizens who are the only ones laws effect aren't out there committing these crimes. But you're right, screw people who follow the law and celebrate those who don't. Have fun with that.

  58. Narad says

    I think trying to parse [Trump's] Joycean ramblings is usually pointless.

    Well, there's a comparison one doesn't see every day.

  59. Mike Schilling says

    I'll just note that of the three it's the leftist pinko peace freak that could express himself clearly and intelligently.

  60. mcinsand says

    I've tried to listen to both sides on this for the past few days. While I don't think Trump was calling for physical action, I firmly believe that he was referring to someone using a gun. Had this been an intelligent, articulate, or reasonable person (pick one of the three), I would have believed that the speaker would have been encouraging those that support the second amendment to be vocal and to support lobbying groups like the NRA. HOWEVER, this is Trump that we are talking about, so making such an assumption would go totally against the speaking pattern he has established.

    Furthermore, whichever monster wins (and I do think that the Nightly Show graphic that precedes their election coverage is dead-on accurate), the last thing I would want is for any harm to come to either of their heads. Our public just loses their minds when a tragedy occurs, and everything that a victim ever suggested wanting suddenly becomes a must-do. If Trump won and something happened to him, we'd probably have a mile-high border wall in a month… and tunnels under it a few days later.

  61. Demosthenes says

    @ Scared e. cat

    Without addressing the rest of your comment, I wanted to say something about this:

    Where is my "right to be wrong"?
    I voted for Obama, damnit…..TWICE!

    Speaking as a Republican who will now be voting third-party in a presidential election for the first time in his life…let me suggest gently that if you really voted twice for Obama, your "right to be wrong" card has already been maxed out.

  62. Total says

    "Bringing a gun to a knife fight" and then going on to say how much a crowd likes a brawl is pretty damned direct in its invokation of the idea of violence.

    Let me help you: http://lmgtfy.com/?q=metaphor

    Here's how you can figure this out — some deranged follower of Obama's goes and gets a gun and says "okay, where's the knife fight?" There's no possible answer to this because the knife fight doesn't actually exist.

    "Late last month, an unidentified 60-year-old man was shot in the bar after debating with another regular patron the suitability of Donald Trump to serve as president. Police said Darnell Hall, 45, shot and wounded the Trump supporter in the leg after their presidential debate turned increasingly testy."

    If your best example of this is 1) a drunken fight in a bar that ends up with someone getting shot in the leg, and 2) crowd fights, then I'm staying with my estimation that scared.e.cat is living up to his name, rather than that the anti-trump forces are roaming public spaces suppressing any opposition.

  63. Alpha Dogue says

    @James: Due to being follically-challenged, I unfortunately cannot join you in hair-splitting activities.

  64. princessartemis says

    @Total, I see you didn't address the part where "Maybe Second Amendment people could" does not directly invoke the idea of violence. Even the people who say it's a dog whistle acknowledge that it's not direct, because a 'dog whistle' is by nature indirect.

    No shit what Obama said was a metaphor.

  65. Earle says

    @Alpha Dogue

    If you're not going to split hairs then what is the point of being on the internet?

  66. Total says

    I see you didn't address the part where "Maybe Second Amendment people could" does not directly invoke the idea of violence

    I didn't address it because it's a ludicrous assertion. A coded appeal to violence is still an appeal to violence. And a "dog whistle" is not indirect, it's just meant to mean something specific to a specific group of people and be impenetrable to others.

    No shit what Obama said was a metaphor

    I'm glad the link helped.

  67. TheLizard says

    "It is, by the numbers, far safer to be a hillary voter, a gary voter, a jill voter, or an anti trump protester." Anecdotal, at best. Could we actually have a formally analysis. Apart from your short list, I can recall many non-Trumpaloos heckled, bullied and attacked at pro-Trump rallies. As opposed to you, I don't turn my anecdotal evidence into some sort of factual presentation."

    I think David Lee's post above, proclaiming justification for violence against any Trump supporter, is all the evidence that you need. That's an attitude quite prevalent among many on the left.

    It's prompted at least one assassination attempt on Trump's life (the guy got within spitting distance).

  68. Total says

    I think David Lee's post above, proclaiming justification for violence against any Trump supporter, is all the evidence that you need

    No, an Internet post is not equivalent to actual violence.

  69. Trent says

    @Demosthenes

    Speaking as someone that's never voted for a republican presidential candidate nor for any republican congressman the anger directed at Obama is just a bunch of baloney. He's been a magnitude of difference improvement over his predecessor and in 50 years he's going to lionized as the president that saved the US from a second Depression while being opposed on every action by a republican controlled congress. It's unfortunate that the rise of echo chamber and privately run propaganda campaigns has created such a hostile political system that has no bearing on reality but the result is people that hate and can't even explain why.

    The more concerning issue is that there is a pretty good chance the republican party is going to self destruct over Trump. And like the whig party that preceded them they may not be around in 50 years. Though one good thing might come of the destruction of the republican party which is, a party that actually supports ending the ridiculous waste of money that is the war on drugs and disbanding the DEA when the Libertarian side of the republican party rallies around the Libertarian party.

    Personally though I'd like to see our national elections changed, the electoral college disbanded and a true multi-party system brought to the fore as multi party systems protect minority voter positions far more effectively than the two party no significant difference system we have now.

    BTW Unless there is a chance my vote can turn Red Utah against Trump I will probably be writing in Cthulhu again like 2012, after all why vote for the lessor evil.

  70. Patrick Maupin says

    @TheLizard:

    I think David Lee's post above, proclaiming justification…

    Reading comprehension fail. When I tell my daughters not to dress provocatively and go to certain areas of town at 3:00 in the morning, I am not victim-blaming.

  71. Gravitas Wave Detector says

    After spending many years reading internet commenters, here and elsewhere, debate policy and social theory, I think it's great that we finally have a candidate who talks like one of us. It's what we deserve, really.

    And by that I mean woodchipper.

  72. says

    Speaking as someone that's never voted for a republican presidential candidate nor for any republican congressman the anger directed at Obama is just a bunch of baloney. He's been a magnitude of difference improvement over his predecessor and in 50 years he's going to lionized as the president that saved the US from a second Depression while being opposed on every action by a republican controlled congress.

    You really are out of touch with reality.

    Opposed by every action? I keep hearing that the Republicans capitulate to him.

  73. Trent says

    Maybe you shouldn't listen the echo chamber telling you what to think. Far to many people disregard facts and happily believe what ever they are told to by the squawk box.

    Always quite Ironic when someone tells you that you are out of touch when they glady get told what to think by the daily propaganda broadcast. The only problem being that the propaganda and manufactured outrage created Trump's Campaign success.

  74. Rich Rostrom says

    Alec McFarlane @August 10, 2016 at 12:48 am says
    And wasn't Lincoln killed in part because of the 14th Amendment?
    John Wilkes Booth did not have precognition.

    Lincoln was assassinated on 15 April 1865. The 14th Amendment was proposed by Congress on 13 June 1866, and adopted on 20 July 1868.

  75. Demosthenes says

    @ Trent

    [Obama has] been a magnitude of difference improvement over his predecessor and in 50 years he's going to lionized as the president that saved the US from a second Depression while being opposed on every action by a republican controlled congress.

    I don't know how you measure magnitudes of difference on things that are inherently unquantifiable, but I doubt that standing by and allowing the Middle East to destabilize, sending the national debt spiraling even further out of control, and sponsoring a bill that will literally lead to the death of the health-care system as we know it will ultimately be viewed by impartial historians as an improvement on Bush 43's tenure. I certainly don't. But then, I prefer to live in a safer world, and in a country where my leaders don't seem to be actively trying to undermine my nation's economy. YMMV.

    Then again, historians do think quite highly of the racist, sexist, Constitution-hating Woodrow Wilson, and I think it's fair to say that they do indeed lionize FDR despite his policies making the Great Depression worse, his naked attempt at a power grab (packing the Supreme Court), and his appalling record related to the civil rights of American citizens who happened to have an ethnically Japanese surname. Such are the benefits of winning world wars, I guess. So you may be right. Obama hasn't had that opportunity yet, but given how well he's held Iran in check, how thoroughly he protected the Ukraine from Putin's incursions, and how quickly he quashed ISIS before it had a chance to spread…oh, wait.

    The more concerning issue is that there is a pretty good chance the republican party is going to self destruct over Trump.

    I'm surprised to hear you say something I agree with. One-party states are inherently corrupt, with no effective check on political power. You always need enough of an opposition to prohibit the dominant party from running wild. Sadly, the Republican Party has not done well in this regard, and it certainly failed when its delegates nominated the only candidate that Hillary Clinton could beat easily.

    Personally though I'd like to see our national elections changed, the electoral college disbanded and a true multi-party system brought to the fore as multi party systems protect minority voter positions far more effectively than the two party no significant difference system we have now.

    Multi-party systems are inherently weak, relying as they do on shifting political alliances, and (when combined with first-past-the-post) they ultimately mean that candidates in some jurisdictions will be elected with ~30% of the vote. Multi-party systems mean that Donald Trumps become more, not less, likely — both at an executive and a legislative level. And if they protect minority rights more effectively, that is usually also at the expense of too firmly preserving the status quo…which in our case includes unsustainable levels of both taxing and spending, a military-industrial complex that is ore concerned with profit than national defense, and a judicial system that prefers inventing new rights to adjudicating questions of law. This is all my long-winded way of saying that If I wanted to live in Germany, I'd live in Germany.

    I think it's telling that every gung-ho electoral reformer is hostile to the Electoral College. I actually think the EC is a good institution overall, for several reasons. First, it serves as a last-resort stopgap — what if, two weeks after the election, we received proof positive that our president-elect had recklessly endangered our national security while using a former position to rake in millions of dollars for a non-profit foundation in shady, graft-ish quid-pro-quo deals? (For instance.) The Electoral College can select someone else, and save us the trouble of an impeachment proceeding. That is just a special case of my second point, which is that the Electoral College serves as a potential check on the naked will of the people. Checks on power are ultimately the things that preserve the minority rights you claim to love, so I would think getting rid of any potential check would give you pause.

    Finally, in tending to magnify the popular-vote margin of victory of the winner, I argue that the Electoral College has a positive psychological impact, in making it easier for the winners to claim victory and making it more palatable for the losers to accept the transition. Take 2012. Obama received roughly 66 million votes, and Romney received roughly 61 million. The margin of five million is quite a bit of difference, I grant you. If five million people incorporated a city, it would immediately become the second-largest city in America. But most people don't do well with large numbers. They tend to cancel out terms. They look at those numbers, and they see 66 to 61…which is not that big a difference, after all. But then look at the electoral vote count — 332 to 206. The gap is smaller as an absolute quantity, but not as a percentage…and since most people deal with numbers in the hundreds far more easily than they deal with numbers in the millions, the gap will actually seem wider to them. I grant you that this psychological effect was not intended by the people who designed and then reformed the system, but it's a valuable one, not to be thrown away lightly.

  76. Alpha Dogue says

    @Demosthenes:

    standing by and allowing the Middle East to destabilize, sending the national debt spiraling even further out of control, and sponsoring a bill that will literally lead to the death of the health-care system as we know it

    That's funny! Almost seems believable, but…

    Obama inherited the already-fully-destabilized Middle East from Bush & Co and the neocon international policies they forcibly implemented. The current boogeyman, ISIS, actually started in 1999, and when Bush dissolved the Iraqi Army in 2003, they created a great recruitment scenario. Strike 1.

    During the Bush administration, the debt increased 86% vs. 49% for Obama. Strike 2.

    And, I like your careful wording on your third item. Is he "destroying the current health-care system", or creating a better new one, where poor and other disadvantaged now have access to actual care? Only time will tell, but strike 3, as the jury is still out.

  77. Demosthenes says

    @ Alpha Dogue

    While the Middle East has never been what one would call a rose garden of tolerance, it was still better off in 2008 than it is now. And please don't take my comments as an uncritical endorsement of George W. Bush, because they are not — the surge should have started earlier, and his administration was really making a mess of Iraq prior to its implementation. But I can't help but remember that…back in 2008…Iran's nuclear program was far more in check, ISIS was not in partial control of two countries, and there were far fewer gay people getting thrown off skyscrapers and Christians getting taxed or killed for being non-Muslims. Soft power may be the order of the day in dealing with fellow liberal democracies, but when it comes to unstable regions of the world, I'll take boots on the ground every time.

    During the Bush administration, the debt increased 86% vs. 49% for Obama.

    I don't dispute the numbers, and percentages are one way to look at it. Of course, when you look at absolute amounts, Obama should end up well ahead of Bush — he was already ahead by over 2 trillion dollars as of the beginning of 2015. And then there's the tricky matter that you're not actually responding to what I said. I never denied that we were already in bad shape, which is why I charged Obama with letting things get "further out of control." To be fair, though, that's not all his fault. His allies in Congress should get the worst of the blame. Being in total control of Congress for four years — the last two for Bush, the first two for Obama — they drove the debt up mightily.

    Our fiscal situation will only get worse in years to come, because of the albatross around our fiscal necks that was the PPACA. But as I read your comment, I see that you're all-in on Obamacare, so never mind. I won't waste my time arguing you out of your position. I'll just let the Gods of the Copybook Headings make my case for me.

  78. Czernobog says

    I actually live in the middle east, and I think the rumors of it's destabilization have been wildly exaggerated.

    The clusterfuck in Iraq is what created ISIS, but the Islamic state itself is now held in check. The spread of it's doctrine to extremists all over the world is another matter, but boots on the ground in Iraq and Syria wouldn't stop that either.

    Syria is no a hellhole, but there's no longer danger of a regime change (granted, no thanks to the U.S)

    Egypt is stable, and the coup attempt in Turkey was a farce.

    As for standing by, the U.S is now more involved than it ever was.

    And the Iranian nuclear program would've continued apace unless you actually tried to conquer them. No one was stupid enough for that. Frankly, the armistice agreement made the best of a bad situation.

    And as a side note, Crimea's population is Russian. They effectively chose to secede. There was no real point in opposing "Soviet aggression" when the people in question considered themselves as being liberated.

  79. Eric S Atkinson says

    @Lagaya1 says
    Sure. We all are quivering in our wait for the all female SJW remake of For Who The Bell Tolls.
    Ass.

  80. M B says

    Yeah, the "Well, aren't the NRA good at voting?" argument is pretty thin. I mean, really? He meant there was nothing anyone could do (including vote) but that the gun rights people have some special voting or peaceful lobbying power that the rest of his supporters don't have? Bullshit. He pretty much straight out said "well, there's nothing we can do about it – except for those of you with guns – you guys might be able to do something about it."

    I can believe that he just meant it as more hot air to encourage his more rabid followers and didn't mean for it to be taken seriously, but there's no plausible explanation that he meant anything other than "you could shoot her," or possibly "you could shoot the judges she appoints."

  81. Guy who looks things up says

    @Eric Atkinson

    Congratulations. You have mastered the basic Trumpian playbook, as follows:

    1. When wrong, double down on it.
    2. Introduce a red herring.
    3. Insult the other party.

    You don't get points for accusing Lagaya of, for example, being a founder of Daesh. The reason is that "SJW" is not universally recognized as an accusation, though I'm sure you meant it that way.

  82. Patrick Maupin says

    @Guy who claims to look things up:

    ""SJW" is not universally recognized as an accusation"

    Your assertion is technically true, because nothing's universal. Some people believe vaccines cause autism, the Holocaust didn't happen, we didn't land on the moon, and the earth is flat.

    OTOH, SJW is, in fact, generally, if not universally, recognized as a pejorative acronym.

  83. Eric S Atkinson says

    @Guy who claims to look things up:

    You are very intelligent.

    Now I have mastered Clinton's playbook.

  84. Lagaya1 says

    Eric Atkinson- At least Hemingway knew the correct usage. The rest of your post, I have no idea…

  85. Guy who looks things up says

    @Eric S Atkinson

    Thank you. There is some evidence that your observation about my intelligence is correct.

    Also I salute your wisdom in responding with an argument you can manage, the tried and true "I'm rubber, you're glue."

  86. Eric S Atkinson says

    @Guy who claims to look things up:

    You are welcome. But as you may have observed, I might have been wrong about another matter according to a certain grammar SJW.

    Sure would like to see that "evidence."

  87. Guy who, in fact, looks things up says

    @Eric S Atkinson

    Evidence? Your bald statement suffices for me, for purposes of this discussion.

  88. Eric S Atkinson says

    @Cactus:
    I myself don't lightly invoke the NSDAP, a group of socialists who started a World War that killed millions of people. However the bunch of socialists that make up SJW 's seems to me to be fair game, as they merely annoy people.

  89. Patrick Maupin says

    @Eric S Atkinson:

    Stop digging already.

    Your question was "Has anyone considered that Trump may have been referring to people whom will not comply with any misinterpretation of the Second Amendment by a stacked SCOTUS."

    I'll ignore the period at the end of it since everybody else did, too.

    In that sentence, the words that follow "people" compose an adjective clause. The question then becomes whether "people" is the subject or the object of that adjective clause. Since the "people" are the ones who "will not", they are the subject of the adjective clause.

    This means that the correct pronoun to use when referring to the "people" from inside the clause is "who" rather than "whom."

  90. Guy who looks things up says

    @Eric S Anderson

    Sounds like confirmation bias to me.

    So you're not a reliable source, then? How disappointing.

    How about this: I'm too smart to hand over personal information to the likes of you?

    Bonus question: is the question mark correct in the preceding paragraph?

    A final observation: when someone takes the time to explain the correct usage, you respond with snark. I think you have a condition commonly called "willful ignorance." No surprise there. It goes with your politics.

  91. Eric S Atkinson says

    @Guy who claims to look things up:

    When someone avoids the point of a comment only to snark about "correct usage" well fuck you very much, ain't you smart.

    You are you? Who the fuck are you?

    This isn't FORTRAN 77.

  92. Humbabella says

    Isn't imminent action a little bit of a weird criterion? What if I said, "I'd like John Doe of 43rd St. Anytown USA to kill Donald Trump on October 23rd and I will personally pay him $100,000 if he does so." I can't imagine anything more *inciting* than that (and if the money is a specific problem, imagine me being just as specific and direct without offering the cash). Does the fact that I'm not saying it should happen until two months from now make it protected speech?

Trackbacks

  1. […] It's not a legal concept, and in fact our laws have no good mechanism to handle it. "Vague threats" are deliberately not threats, under the law; you can't be imprisoned for saying "I'm gonna kill that son-of-a-bitch," or for "Someone oughta do something," unless one can show that in the context it was said, that's something that would cause someone to fear for their life. (It's actually even more complicated than that, but that would be a whole long article in its own right. +Ken Popehat wrote a short summary relevant to today's news here: https://popehat.com/2016/08/09/lawsplainer-no-donald-trumps-second-amendment-comment-isnt-criminal/) […]

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