Donald Trump's Second Amendment Crack: Weird and Menacing but Probably Not Illegal

Donald Trump's loopy, menacing crack about "Second Amendment people" taking action against Hillary Clinton was weird, illogical and wildly inappropriate—but unlikely to meet the legal definition of a threat against a presidential candidate.

Under federal law, it is a crime to threaten major party presidential candidates or their families. (Sorry, Libertarian Party nominees Gary Johnson and Bill Weld, this does not seem to apply to you.) The statute in question also covers anyone under Secret Service protection, and other sections protect the president, of course, and presidential electors too. But the oblique phrasing used by Trump would seemingly make it impossible to prosecute him under the statute—not to mention that the Department of Justice would be unlikely in the extreme to intervene in a presidential campaign in such a manner.

At issue is 18 U.S.C. 879, the statute that deals with what constitutes a threat to presidential candidates, and it only applies to someone who "knowingly and willfully" makes one. The Trump campaign released a statement on Tuesday night saying that the "Second Amendment people" comment was a reference to organizing gun rights advocates. The candidate himself tweeted: "Media desperate to distract from Clinton's anti-2A stance. I said pro-2A citizens must organize and get out vote to save our Constitution!"

That's not quite what Trump said. His full remarks were a choppy series of assertions, some of them at best misstatements. "Hillary wants to abolish—essentially abolish the Second Amendment," Trump said during a rally in Wilmington, North Carolina, on Tuesday. That is not true. Clinton has proposed several gun control measures that are similar to others that have been upheld in lower courts and that, at least so far, seem in keeping with the late Justice Antonin Scalia's ruling in the Supreme Court's District of Columbia v. Heller decision on gun rights. Even if those proposals didn't pass judicial muster, that's not the same as abolishing the Second Amendment.

Trump also said, "If she gets to pick her judges, nothing you can do, folks." It depends on what Trump means by pick. If Clinton nominates judges who raise the ire of gun rights advocates, there is plenty that "folks" can do, including rallying members of the Senate to oppose their confirmation. Trump is now saying that's what he meant by his reference to Second Amendment people, but at least in his initial statement he seemed to assume that Clinton had the power simply to appoint judges. Under the Constitution, she of course would not have that power.

Then came the line: "Although the Second Amendment people—maybe there is, I don't know," which was bizarre on several levels. Was he suggesting that gun owners are lawbreakers prone to assassinating presidential candidates? Was he talking about their political strength?

Should Trump's crack be considered illegal under 18 USC 579? Some Democrats are already asking about that. U.S. Representative Eric Swalwell called on the Secret Service to investigate, and that agency itself cryptically tweeted yesterday: "The Secret Service is aware of the comments made earlier this afternoon." Other politicians have called Trump's words "an assassination threat" (Democratic Senator Chris Murphy) and "a joke gone bad" (Republican House Speaker Paul Ryan).

In all likelihood, Trump's claim that he was merely referring to lawful political rallying is enough to end an investigation. It just doesn't resemble the kinds of threats that are actually prosecuted. The Secret Service takes threats against those under its charge extremely seriously, but it takes a flat-out threat to get you put behind bars. There have been convictions in some cases, such as a man who said, "President Wilson ought to be killed. It is a wonder someone has not done it already. If I had an opportunity, I would do it myself." In 2010, Brian Dean Miller was convicted for posting to Craigslist the remark "People, the time has come for revolution. It is time for Obama to die. I am dedicating my life to the death of Obama and every employee of the federal government. As I promised in a previous post, if the health care reform bill passed I would become a terrorist. Today I become a terrorist."

But while Groucho Marx drew jeers by saying that the assassination of Richard Nixon was the only "hope" the country had, it wasn't pursued by law enforcement. A Los Angeles Times cartoon depicting George W. Bush getting shot earned a visit from the Secret Service but no further action.

It's not clear where the line stands between free speech advocating violence in the abstract and a specific threat, but Trump probably didn't cross it. The broad assertion that "we need an armed revolution," or repeating the famed phrase "by any means necessary," is not a specific and illegal threat. In a landmark 1969 Supreme Court case, Brandenburg v. Ohio, the court struck down an Ohio law that convicted a Ku Klux Klan leader. His gauzy portrait of violence was not, the court ruled, a specified, imminent threat: "Freedoms of speech and press do not permit a State to forbid 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."

Even if Trump could beat the rap were charges to be filed, even if there is no Secret Service investigation at all, and even if Trump is to be taken at face value when he claims he was talking about the political power of gun owners and not the force of their bullets, this is another example of how he has blown away the existing norms of presidential campaigning.

From not releasing his tax returns, to not offering complete medical records, to not knowing what the nuclear triad is or suggesting the U.S. ignore the NATO treaty, Trump has changed the rules of presidential campaigning. Unlike his calling for a nuclear Japan or implying he has a large penis, this kind of comment could potentially incite the unstable or criminally minded. "You're not just responsible for what you say," asserted former CIA Director Michael Hayden. "You're responsible for what people hear."

That is why Thomas Friedman likened the Trump rally atmosphere to that in Israel leading up to the assassination of Yitzhak Rabin by a Jewish opponent of the peace process that was being led by the then prime minister. Trump's words weren't illegal, but they matter.