Is Second Amendment fight a winner for Donald Trump?

Story highlights

  • Paul Callan: Trump's critics wrongly accuse him of a crime, and the GOP candidate is succeeding at rallying gun rights backers
  • He says Trump's vague remarks are protected by the First Amendment

Paul Callan is a CNN legal analyst and a former media law professor. He is a former New York homicide prosecutor and criminal defense attorney who serves as "of counsel" to Edelman & Edelman, PC and is senior trial counsel at CallanLegal, where he focuses on civil rights and wrongful conviction litigation. Follow him on Twitter: @paulcallan The opinions expressed in this commentary are his.

(CNN)Donald Trump continues to do his version of the rope-a-dope, luring his political critics into a fight they cannot win. Once backed into the ropes, Trump then sucker punches and dominates the news cycle for yet another day.

Tuesday he made a clumsy joke implying that his "Second Amendment" supporters had methods other than the ballot box to "stop" Hillary from picking anti-gun judges. His lame joke then inspired distraught Clinton supporters to cry foul, asserting that Trump was actually advocating the assassination of Clinton and that Trump should be charged with a crime.
    The claim that Trump could be charged with a crime for his political comments is just as absurd as Trump's own initial comments. But with the press and the critics rallying to string Trump up like a bad guy in a spaghetti Western, today's debate will actually enable Trump to rally his pro-gun supporters, reminding them of his claim that Clinton is anti-gun, a claim she vehemently denies.
    Watch as Trump rides off into the sunset holstering his revolver. No need for him to shoot, Clinton supporters have turned the loaded weapon on themselves.
    Trump will move on from this latest controversy with his core supporters thinking he was being attacked so fervently because he is so pro-Second Amendment. He will use the whole incident to create the impression that Clinton is weak on gun rights and her nuanced position on the issue will be lost in the smoke and fire of her supporters' call for prosecution or Trump's withdrawal from the race.

    What he said

    Let's review what Trump actually said: "Hillary wants to abolish, 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'll tell you what, that will be a horrible day."
    Were those remarks a criminal call to assassinate Clinton to stop her from appointing anti-Second Amendment judges to the Supreme Court? The answer to that question is a clear-cut "no" under US law.
    Many commentators critical of Trump are claiming the words he spoke would warrant arrest if spoken by an ordinary citizen. In fact, while Trump's remarks were inappropriate, intemperate and stunningly stupid for a presidential candidate who has the ability to influence mentally unstable people who may own guns around the country, he committed no crime in uttering the words.
    Rep. Eric Swalwell, a California Democrat, called on Twitter for the Secret Service to investigate. "Donald Trump suggested someone kill Sec. Clinton. We must take people at their word. @SecretService must investigate #TrumpThreat," he wrote.
    A Secret Service official told CNN the agency, which provides protection to Trump and Clinton, has discussed the matter with the Trump campaign.
    Sen. Chris Murphy, a Democrat from Connecticut, launched a series of tweets criticizing the comments: "Don't treat this as a political misstep. It's an assassination threat, seriously upping the possibility of a national tragedy & crisis," he wrote. "This isn't play. Unstable people with powerful guns and an unhinged hatred for Hillary are listening to you, @realDonaldTrump."

    First Amendment protections

    The First Amendment of the U.S. Constitution provides a heavy and virtually impenetrable layer of free speech protection to words, even irresponsible and intemperate ones uttered by a candidate during the course of a political campaign.
    The Supreme Court sorts types of speech into categories such as "commercial" and "political" as it analyzes the level of protection the speech deserves. It also analyzes where the speech takes place. For instance, speech uttered in an elementary school, a movie theater, or a prison is treated differently than speech at a political rally.
    Everyone has heard the phrase "You can't yell 'fire' in a crowded theater," and you can't. In the absence of a real fire, that would be a crime because of the danger of physical injury that it might cause.
    The type of speech granted the most sweeping protection is "political" in content and uttered in a "political" setting. Trump's controversial statements about the Second Amendment fall into both protected categories and would be accorded absolute First Amendment protection.
    Please note the Supreme Court does not evaluate the sensibility or appropriateness of the speech in granting this First Amendment protection. This actually is one of the things that really does "Make America Great."
    Let's face reality here, if intemperate speech were a crime, Donald Trump would already be serving life in prison.

    Too vague

    Even if the First Amendment did not protect Trump from prosecution, the vagueness of his actual spoken words would. A first year law student could probably win the case as Trump's defense counsel.
    The words are too vague to prove a case "beyond a reasonable doubt" against Trump for anything except intemperance and a twisted and arguably dangerous sense of humor. If multiple inferences can be drawn from a statement, and some of those inferences are noncriminal, no criminal prosecution can be sustained as a matter of law.
    The defense would say Trump was not urging assassination but rather was somewhat inartfully calling for a heavy voter turnout by "Second Amendment people." If they support Trump, Clinton doesn't get elected and is never in a position to "pick her judges." And defense lawyers would throw in "political hyperbole" and argue Trump was joking. The result: end of case. (After all, Trump is a businessman, not an experienced wordsmith like most politicians, and his opponent.)
    Therefore on the basis of the First Amendment and the "Void for Vagueness" doctrine, as so ably spoken by FBI Director James Comey when talking about the Hillary Clinton emails: " ..no reasonable prosecutor would bring such a case. ..."