By Gregory P. Magarian
The assassination in September 2025 of conservative activist Charlie Kirk has heightened attention on the relationship between political rhetoric and political violence.
Even before police had identified a suspect, President Donald Trump blamed the shooting on the “rhetoric” of the “radical left.” The Trump administration has since acted to silence left-leaning speakers and is threatening to intensify its attacks on left-wing political speech.
But my decades of studying free speech law have convinced me that suppressing political rhetoric, even through social norms rather than law, undermines the discussion, debate and constructive disagreement essential for a healthy democracy.
Gun proliferation complicates the problem by making political violence much easier to carry out.
Rise of political violence
Political violence – by which I mean any physical attack on people that aims to achieve a political goal – harms democracy by shifting the field of political disagreement from debate to aggression.
Under the U.S. constitutional system of limited government and individual rights, political violence by the government – for example, government assaults on anti-government protesters – is among the gravest threats to liberty.
But political violence committed by private individuals or groups also corrodes constitutional democracy. In the United States, acts of private political violence against members of government and against ordinary people have both increased dramatically in recent years.
Political assassinations are the most vivid form of political violence. The Kirk assassination is only the latest example.
David Ryder/Getty Images
In June 2025, a shooter with a “hit list” of left-liberal targets assassinated Minnesota Democratic Rep. Melissa Hortman and her husband. In December 2024, a shooter angry about health insurance costs killed United Healthcare CEO Brian Thompson. In July 2024, a shooter wounded Trump at a campaign rally in a failed assassination attempt.
Political violence also includes bias-motivated murders. In 2022, a white supremacist murdered 10 Black patrons at a grocery store in Buffalo, N.Y. In 2019, an anti-immigrant racist murdered 23 mostly Latino shoppers at a Wal-Mart in El Paso, Texas. In 2018, an antisemite murdered 11 congregants at a Pittsburgh synagogue.
In those incidents and numerous others, extreme political ideas appear to have motivated the attackers. The linkage of extremist speech to lethal violence has prompted calls to legally restrict or punish extremist speech.
Political violence, free speech and cultural editing
The First Amendment, however, protects extremist speech, including advocacy of violence. Violent rhetoric must actually incite or threaten violence to lose the First Amendment’s shelter.
If law cannot curb the sorts of speech that may inspire political violence, what about social norms – widely shared beliefs about what speech is socially acceptable or appropriate?
Much speech that the First Amendment protects from government regulation eventually disappears from public discourse. That happens through a process I call “cultural editing”: popular and institutional rejection of outmoded or repellent ideas. For example, no serious medical conference discusses treating hay fever with cocaine, and no respectable political science panel includes Nazis.
The Trump administration’s blaming of the Kirk assassination on “radical left” rhetoric points toward a deeper level of cultural editing.
Trump and other conservatives have not cited speech that advocated violence against Kirk. Instead, some conservative activists, spurred on by Trump administration officials, called for harassing and punishing critics of Kirk’s statements and actions.
But such criticisms of Kirk, whatever their merits or lack thereof, fall within the scope of ordinary political debate.
Kirk was not a government official, but he had strong influence in the Trump administration. Robust democratic discourse requires space for people to criticize such powerful figures. Large-scale cultural editing of those criticisms, amounting to suppression of left-leaning views, would hurt the public’s ability to discuss and resolve political disagreements.
However, Trump and others who push for suppressing harsh political rhetoric might argue that the stakes of verbal attacks have increased. They might say that U.S. political culture can no longer indulge political invective because political violence has become more common.
Political violence and guns
That argument for suppressing harsh political speech ignores an independent cause of political violence: gun proliferation.
Most political violence in the U.S. involves guns. Guns make political violence easier by erasing the distance between extremist ideas and lethal action. Hate or fanaticism can end a life in an instant, hundreds of yards from the victim.
The U.S. has by far the highest number of civilian guns and rate of civilian gun ownership in the world. Since 2008, when the Supreme Court declared an individual Second Amendment right to keep and bear arms, annual U.S. gun purchases have increased from about 9 million to about 16 million.
Governments often find regulating speech easier, even though less effective, than tackling underlying problems. At times, federal and state governments have addressed political violence by regulating guns. The 1994 federal assault weapons ban exemplifies regulatory efforts to curb overall gun violence.
But the Supreme Court’s Second Amendment cases now appear to bar strong gun regulations.
People in a democratic society need freedom to make harsh, even extreme political statements with a minimum of cultural editing. The Second Amendment protects access to lethal weapons. This combination of free speech and gun rights makes the growing problem of political violence much harder to solve.
Gregory P. Magarian is Thomas and Karole Green Professor of Law at Washington University in St. Louis.
PaulT says
Is it fair to say that the Second Amendment has failed?
It’s original intent was, in part, to arm citizen militias thus enable states and individuals to defend themselves against Federal government overreach. Yet here we are almost 250 years after the United States of America was founded, ruled by an administration which is becoming absolute in it’s dominance and has even managed to subjugate our elected represantatives in Congress and gain control of the Supreme Court.
A regime which might reasonably be accused of tyranny since our current president has claimed unprecedented authority and appears determined to decimate our First Amendment rights while most Second Amendment supporters seem to dote on their authoritarian and almost regal ruler.
Sherry says
This is what happens when, with the help of the Supreme Court, the second amendment is encouraged to literally “gun down” the first amendment.
Ray W. says
In 1961, Barnes & Noble, New York, published THE FEDERALIST, copyrighted by the President and Fellows of Harvard College. My copy was republished in 2004. I read it then and reread it a few years ago. My copy is edited by Benjamin Wright, University of Texas, with his EDITOR’S INTRODUCTION preceding the 85 essays that comprise the sum of the Federalist Papers. R. B. Bernstein, Assistant Editor, The Papers of John Jay and Adjunct Professor, New York Law School wrote, in 1996, the FORWARD to my copy.
In his FORWARD, Adj. Prof. Bernstein pointed out that in 1788, Jacob. E. Cooke collected for publication newspaper articles of the 85 papers, because the authors, save John Jay, did not preserve their original submissions. Also in 1788, brothers John and Archibald McLean collected for publication newspaper articles of the 85 papers. But many newspapers had published some or all of the submissions. And not all articles were the same.
Since that time, Federalist Papers scholars have debated which of the two collections most accurately reflect the original submissions.
My copy is drawn from the McLean publication. No one now knows exactly what was written by Alexander Hamilton or James Madison, because the originals were not preserved. One argument for this lack of preservation is that neither Hamilton nor Madison wished to risk exposure to libel actions.
Also in his FORWARD, Mr. Bernstein wrote this passage, in his effort to convey to readers his opinion of the most accurate meaning of the three federalists who called themselves Publius:
“… Besides the historical context (ably elucidated by Wright’s introduction and by Richard B. Morris’s Witnesses at the Creation), four other contexts shape our approach to The Federalist: the problematic relationship between theory and practice in American constitutionalism; the controversy over original intent in constitutional interpretation; the argument over republicanism and liberalism in American political thought; and the growing appreciation of The Federalist as a classic of American literature. Wright’s introduction provides a masterly analysis of the first; I therefore address the other three.
ORIGINAL INTENT
“Is The Federalist the key to what the Constitution’s framers and adopters intended it to mean and how they expected it to function? This subset of the original-intent controversy tends to pit many historians, who remain dubious about original-intent arguments, against many legal scholars, who seek a way to limit judicial discretion by anchoring constitutional interpretation in the Constitution’s origins. The line separating these camps is fuzzy, however; noted historians embrace and distinguished legal scholars ridicule the quest for original intent.
“The Federalist’s authority as a guide to original intent is disputable. Jay was not a delegate to the Federal Convention, which framed the Constitution — though he had helped to spearhead the movement for national constitutional reform that led to the Convention and was a powerful advocate for ratification in the 1788 New York ratifying Convention. Hamilton, though one of the three New York delegates in Philadelphia, was outnumbered and frustrated by his Anti-Federalist colleagues, Robert Yates and John Lansing, Jr.; he left the Convention in July, not returning until two weeks before its close in September. And Madison, though a constant presence at the Convention and the key designer of the Virginia Plan on which the Constitution based its work, found himself outvoted on a host of major issues. By the Convention’s close, Madison and Hamilton concluded that the Constitution was too weak to accomplish the ends that a national government had to achieve. They were stunned to learn that many Americans opposed the Constitution as too centralized and dangerous.
“Moreover, Hamilton and Madison sometimes proved poor prophets of the ways that the Constitution would operate. For example, Hamilton assigned the Senate a share in the President’s power to remove executive branch officials; he and Madison agreed that the states were more likely to encroach on the federal government than it was likely to encroach on the states; and and Hamilton’s case against a bill of rights is more a good lawyer’s defense of a feeble cause than convincing in its own right.
“The Federalist is a masterpiece of political argument, intended more to persuade its readers to adopt the Constitution than to explain how it would operate. Though this truth does not prevent those who would interpret the Constitution from citing Publius as persuasive authority, it should restrain them from invoking Publius as conclusive authority.
REPUBLICANISM v. LIBERALISM
“Beginning in the 1950s and blossoming since 1961, a major scholarly controversy has sucked the Federalist into its gravitational field: What was its role in the great shift from republicanism to liberalism in American political thought? These complex bodies of ideas and practices have almost no direct links to today’s Republican party or modern American liberalism; moreover, these terms have become so vague that many historians have abandoned both words as useless.
“Desiring to preserve liberty and to achieve the common good, Americans established republican forms of government — in which the people held ultimate political power, entrusting it to representatives responsible to them. Every previous republic, however, had collapsed into anarchy or tyranny. The precondition for a successful republic, therefore, was to maintain the people’s virtue — their willingness to sacrifice special interests in the service of the public interest.
“By contrast, those who espoused liberalism favored each person’s right to pursue his or her talents and abilities to the fullest extent possible. The strongest case for a republic, they argued, was precisely that it would enable each citizen to develop those talents, a republic should take the greatest possible pains not to restrain that process but to guide it so that individuals’ pursuit of their own interests would foster the public interest.
“Scholars who identify a great transition from republicanism to liberalism marked by the making of the Constitution and those who insist that the Constitution maintained the American commitment to republicanism find ammunition in The Federalist. That they can read it for such clashing purposes, however, undermines this argument’s usefulness for understanding The Federalist or the historical context that produced it. Today, historians and legal scholars such as Jack N. Rakove, Bruce Ackerman, William E. Nelson, and the present writer are moving beyond this debate’s stale polarities. Instead, they suggest, American constitutionalism embodies an ever-shifting balance between these two bodies of thought; there was thus no dramatic sea-change from one to the other.
THE FEDERALIST AS LITERATURE
“For decades, the study of American literature began with the writings produced by Puritan theologians and the reflective poets and diarists of the middle and southern colonies. Abruptly breaking off with the end of the Great Awakening in the 1750s, the American literary canon resumed with the New England Transcendentalists of the 1830s, using the brooding Edgar Allan Poe as a counterpoint.
“In 1984, however, Robert A. Ferguson’s Law and Letters in American Culture challenged this conventional wisdom. Ferguson, a leading figure in the field of ‘law and literature,’ showed that, between the 1750s and the 1830s, those who created great literature turned away from the individual’s inner life to view literature as a valuable public calling, a tool for shaping the nation’s public life.
“Read in this light, The Federalist becomes a landmark of literature as well as politics. Not only did Hamilton, Madison, and Jay articulate a generous, noble form of politics and political argument — they exemplified it. As Ferguson, Albert Furtwangler, James Boyd Wright, and the present writer have noted, this literary quality helps to ensure The Federalist’s success as a work of constitutional, political, and legal persuasion. In particular, as Ferguson argued at Columbia University’s 1995 conference on ‘The Life and Legacy of John Jay,’ The Federalist Nos. 2-5 constitute Publius’ intellectual launching pad. In these essays, John Jay emphasized the forces unifying the American people; the serene and principled cast of mind that enabled the Constitution’s framers to recognize these great truths; and the people’s ability to emulate the Convention’s high-mindedness in deliberating on the Constitution. Jay framed the argument over the Constitution to compel the conclusion that any decision other than ratification would have led to chaos and ruin.
“Thus, after more than two centuries, The Federalist still retains its place as the foremost American work of political philosophy, political argument, and constitutional interpretation. We continue to learn from Publius in both content and spirit.”
Make of this what you will.
Me?
The author refers to a period known as the Great Awakening in the 1750s to the era of Transcendentalism, which succeeded the Great Awakening in the 1830s.
I have repeatedly commented to FlaglerLive that this period is known in academia as the Age of Reason, though I believe that Transcendentalism originated long before the 1830s, when it took full root. Our nation came to being during this age.
One of the leading philosophers of the day was Dr. Thomas Reid, considered one of several founding proponents of a Common Sense movement that accentuated the Age of Reason. He was educated in the Scottish Enlightenment school of thought.
Nearly all of the American colleges and universities of the day had been founded by or were led by members steeped in the Scottish Enlightenment school of thought.
Those of our founding fathers who attended college or university were trained in this Scottish Enlightenment school of thought, which exemplified the three forms of reason: inductive reason, deductive reason and argumentation, also known as legal reason.
Common sense, I argue, is a process and not a result.
If common sense is a process, then we must go through that process every time an issue arises, using each of the three forms of reason to guide us. This is what Thomas Jefferson meant when he wrote to the nephew he had raised as a son that, as the nephew had just graduated from university, it was time for the nephew to use Heaven’s greatest gift to mankind, reason, to determine for himself whether God existed or not. Jefferson cautioned his nephew not to consult anyone else, not even him; the process needed to be done by the nephew alone, using the gift of reason that he had just been taught.
If common sense is a result, then someone else can decide for you and me what comprises common sense. That common sense can be a result is exactly the opposite of what our founding fathers were taught.
So in 1796, when members of the House of Representatives debated whether our founding fathers had contemplated the forming of a central national bank, several of them argued what they thought certain individual founders meant.
James Madison, the man who actually wrote the Constitution and the man his contemporaries thought the most intellectual among them, took to the floor of the House and argued but didn’t decide:
“… But, after all, whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution. As the instrument came from them it was nothing more than a draft of a plan, nothing but a dead letter, until life and validity was breathed into it by the voice of the people, speaking through the several State Conventions. If we were to look, therefore, for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State conventions, which accepted and ratified the Constitution.”
I interpret what James Madison said to his fellow Representatives was: If, and only if, and you are never obligated to do this, one must look beyond the face meaning of the words in the Constitution, do not look to me for guidance, even though I wrote it. What I wrote was never alive; it was a dead document when published. And I had no role in making it come alive.
To Madison the Constitution only became alive when the ratifiers, elected by their state’s citizens, met and reasoned among themselves and then accepted the Constitution. So, look to them, and only to them, if you decide you must look beyond the face meaning of the words in the Constitution.
Thomas Jefferson, history shows, was never a member of the Constitutional Convention, because he was America’s envoy (ambassador) to France at the time.
And, Jefferson was not a ratifier either, as he was still an envoy to France during the time of Virginia’s Ratification Convention.
Jefferson did pen the Declaration of Independence, but that doesn’t make him a founding father of the Constitution.
At each step of our nation’s long struggle for independence, different people were selected at different times for different roles and purposes. Few of them served in multiple roles. To me, this means that there are hundreds, perhaps even thousands of founding fathers. And no single common thread connected them all to one single thought, other than the three forms of reason inhering in the philosophy of the Scottish Enlightenment that motivated them to break free from a king they came to deem tyrannical. These were taught that liberty meant engaging for themselves the use of reason anew to resolve each problem whenever a problem arose, not to rely on someone else’s reason. To them, I argue, common sense was a process, not a result. Tyranny is a result, not a process, as tyranny occurs when someone else decides for you or me what common sense means.
Pogo says
@Salutations Ray W
Hegel lives — and I’m glad of it. Thank you.