Trump’s Second Amendment Line Probably Won’t Land Him in Jail

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Donald Trump, addressing supporters at a campaign event in Wilmington, North Carolina, this afternoon, suggested that if Hillary Clinton wins the presidency and people disagree with her Supreme Court nominees, well …

If she gets to pick her judges, nothing you can do, folks. Although the second amendment people, maybe there is, I don’t know.

You read that right. And yes, it seems he suggested that people use guns to make a point. It’s not clear if he was suggesting that people take up arms against a Clinton administration, or against her nominees. In the most extreme view, you could interpret his comment–which followed a digression on the death of Antonin Scalia–as an incitement to violence against Clinton. That’s how it appeared to many people.

So … did the Republican presidential candidate just threaten the Democratic presidential candidate?

“That’s actually a very interesting legal question,” says Scott E. Sundby, a federal criminal law expert at University of Miami School of Law. That’s because the law just changed. In 2015, the Supreme Court ruled in Elonis v. US that “any communication of a threat is something that the person who is communicating it would have to, on some level, realize would be understood as a threat,” Sundby says. In other words: You gotta mean it.

Whether Trump’s aside, with its sideways syntax, meets this criteria is tough to say. Could Trump claim, as he has after other outre statements (remember that baby?), that he was kidding? “You could read it as threatening Hillary Clinton or inciting others to do damage to her,” says Leslie Kendrick, a constitutional lawyer at the University of Virginia. “The more opaque it is, the harder it is to establish that this is unprotected speech.”

But Trumpian opacity could protect him from prosecution. “I’m sure his defense will be, ‘Anyone would understand it as a joke and if they didn’t that’s their problem not mine, because I meant it as a satirical comment,'” Sundby says. If Trump can plausibly claim that it never occurred to him that anyone would take him seriously, the comment is not a threat under federal law.

But oddly, that’s not the tack Trump’s campaign took. Within an hour of the statement, the campaign issued a clarification:

It’s called the power of unification–2nd Amendment people have amazing spirit and are tremendously unified, which gives them great political power. And this year they will be voting in record numbers, and it won’t be for Hillary Clinton, it will be for Donald Trump.

That’s not the “I was joking” defense. That’s the “not what I meant” defense. But it bears mentioning that Trump’s rallies regularly draw supporters calling for violence against Clinton. As The New York Times reported last week, some who attend his rallies often shout “kill her!” Late last month, Trump’s veteran affairs advisor Al Baldasaro told The Daily Beast that Clinton should be shot for treason.

Ordinarily the US Secret Service looks into things like this. US Law 18 code 879 grants the agency jurisdiction to protect national political candidates from threats. It reads:

(a) Whoever knowingly and willfully threatens to kill, kidnap, or inflict bodily harm upon–
(1) a former President or a member of the immediate family of a former President;
(2) a member of the immediate family of the President, the President-elect, the Vice President, or the Vice President-elect;
(3) a major candidate for the office of President or Vice President, or a member of the immediate family of such candidate; shall be fined under this title or imprisoned not more than 5 years, or both.

The Secret Service declined to comment on how it might respond to Trump’s comment. Though it did tweet this later in the day:

Here is his full quote:

Hillary wants to essentially abolish the second amendment. By the way, and 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 tell you what, that will be a horrible day. If Hillary gets to put her judges … right now we’re tied. You see what’s going on. We’re tied. Because with Scalia, this was not supposed to happen. Scalia was supposed to be around for 10 more years at least, and this is what happens. That was a horrible thing. If you don’t do what’s the right thing, either you’re not going to have a Second Amendment or you’re not going to have much of it left. You’re not going to have the right to protect yourselves, which you need. Which you need. You know, when the bad guys burst into your house, they’re not looking in Second Amendments and am I going to do this.

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