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Can Charlottesville ban guns at a political rally?

Published by lloyd on September 9, 2017

On August 12, when the Unite-the-Right rally came to Charlottesville’s Emancipation Park, there were four groups with assault rifle-style weapons:

  • The State Police riot squad;
  • The National Guard;
  • The so-called III%’ers (shown above), supposedly hired to provide security for the Nazis; and
  • The Redneck Revolt, there to provide security for counter-protesters at Justice Park.

None of the openly carried weapons seems to have been even pointed at anyone, much less fired; there only seems to have been one gunshot fired that day — William Preston has been charged with discharging a firearm within 1,000 feet of a school for supposedly shooting at counter-protester Corey Long.  [See video here.]  But police knew that the Unite-the-Righters were coming armed with concealed weapons — something that Preston clearly confirmed — and according to one police officer I spoke with, that knowledge informed their leaders’ instructions not to wade into the fight going on in the street.  Governor McAuliffe said that their intelligence was that 80% of the UTR’s would be armed.  One of them — Chris Cantwell, now facing criminal charges for his actions on August 11 in allegedly attacking students at the University of Virginia with pepper spray —showed Elle Reeve of VICE News how he had three handguns, two AK-47s, and a knife with him in Charlottesville.  (The video is cued up to show him taking his guns out…)

Since August 12, it has been reported that leading up to the rally, Governor McAuliffe suggested to Charlottesville officials that they prohibit weapons at the rally.  The following week, at a Boston alt-right rally, anything that could be used as a weapon — including flagpoles — was banned, and all participants were required to go through metal detectors.

So what is the law here?  Could Charlottesville have prohibited guns at the UTR rally?

The simple answer is that the answer is not simple.

There is no principle of the First, Second or Fourth Amendments that would keep a locality from saying, “If you want a permit for a rally, we’re going to use a metal detector.”

But in Virginia, there are state statutes that say, “A locality has no legal authority to prohibit firearm possession, even in a state of emergency.”

Federal Constitutional Law:

I am not aware of any court that has held that there is a First or Second Amendment right to have firearms as a part of a peaceful assembly.  The cases that have discussed the issue have typically been decided under the Fourth Amendment right not to be searched without probable cause.  Just as the First Amendment has been held to permit regulation as to time, place and manner of expression, the Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 626, 128 S.Ct. 2783, 2816-17, 171 L.Ed.2d 637 (2008), stated:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. … For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. …  Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools and government buildings…
(Citations omitted) (Emphasis added).  Presumably a political rally in a public park could be deemed a “sensitive place,” though that phrase has not been given a clear meaning in the cases that have tried to apply that language from Heller.
 As for the Fourth Amendment protection against unreasonable searches and seizures at a rally, the lead case in the Fourth Circuit is Norwood v. Bain, 143 F.3d 843 (4th Cir. 1998), aff’d in part and rev’d in part, 166 F.3d 243 (1999) (en banc).  That case involved a “charity motorcycle rally,” where up to 3500 members of the Pagans and the Hell’s Angels were coming together to raise money for the American Red Cross.  (No kidding.)  The Spartanburg, South Carolina, Police Department decided that there was a danger of violence (you think?), so they set up a checkpoint to look for weapons.  People coming to the rally were stopped, they and their licenses were videotaped, and — at least at first — they were required to go through a metal detector.  But the metal detector was not working well in the presence of all of the steel in the bikes, so the police instead conducted physical searches of their clothes and saddlebags.  When the bikers claimed that their constitutional rights were being violated, the Fourth Circuit upheld the stop, but they were split evenly on the question of searches, so the District Court ruling that any searches not based on individualized suspicion were unconstitutional was affirmed.
The various courts that looked at this case seemed to agree that running everyone through a metal detector, and searching the people who had “hits” in the metal detector, would have been constitutional.  Doing an actual physical search of everyone without any particularized reason was NOT constitutional.  This is consistent with decisions from other areas of the country.
For example, the KKK conducted 16 rallies in Connecticut from 1980 through 1984.  The Connecticut State Police learned that the Klan members intended to arm themselves “for self-defense” against counter protesters.  For some of the rallies, law enforcement officials went to court and got orders prohibiting the carrying a firearm or other dangerous weapon; for others, they conducted physical searches or metal detector searches.  The Klan members sued, and eventually all of the cases went up to the Second Circuit Court of Appeals, which held:
… the indiscriminate patdown searches conducted here were excessive.   … the mass pat-down searches conducted at these Klan rallies went beyond the bounds established by the fourth amendment.
On the other hand, … we conclude that the injunction should allow magnetometer searches of persons and packages at such rallies, followed by frisks where the magnetometer indicates the presence of metal and the situation cannot be resolved by use of the magnetometer alone.

Wilkinson v. Forst, 832 F.2d 1330, 1340 (2d Cir. 1987).

This seems to be the consensus of the federal constitutional cases.

State statutes:

But Charlottesville authorities only have authority to take action as they are specifically permitted to do so by the General Assembly, and here is where things get difficult.

First, Virginia is an “open carry” state.  Anyone who is not prohibited by law from having a firearm is permitted to carry that gun openly, at least publicly.  (A private property owner can still say “Not on my property,” but here we are talking about public streets, sidewalks and parks.)

Charlottesville is not free to apply our own rules in our city.  There are two statutes that have particular relevance here.

Va. Code §18.2-287.4 specifically prohibits carrying some kinds of loaded firearms in some parts of the state:

It shall be unlawful for any person to carry a loaded (a) semi-automatic center-fire rifle or pistol that expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine that will hold more than 20 rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock or (b) shotgun with a magazine that will hold more than seven rounds of the longest ammunition for which it is chambered on or about his person on any public street, road, alley, sidewalk, public right-of-way, or in any public park or any other place of whatever nature that is open to the public in the Cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, or Virginia Beach or in the Counties of Arlington, Fairfax, Henrico, Loudoun, or Prince William.

Note, first, that Charlottesville is not one of the jurisdictions where this prohibition applies.  After an incident in 2013 in which a man walked into a Charlottesville Kroger store while carrying an assault-style weapon, the Charlottesville City Council asked to be added to this statute, but the idea got nowhere; it had no Republican support.

Note, second, that it does not apply to all firearms — only to assault-style weapons.  The most recent attempt to expand the ban to more weapons — Senator David Marsden’s SB 184 and 185 in the 2016 General Assembly session — died in committee.

Second, Virginia follows the Dillon Rule.  That is a rule that most states follow to some extent, but which Virginia follows about as strictly as any state in the nation, and it says that a locality can only do things that the General Assembly gives it specific permission to do.

The Dillon Rule provides that municipal corporations possess and can exercise only those powers expressly granted by the General Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable. … If there is any reasonable doubt whether legislative power exists, that doubt must be resolved against the local governing body.

City of Richmond v. Confrere Club of Richmond, Virginia, Inc., 239 Va. 77, 79–80, 387 S.E.2d 471, 473 (1990) (citations omitted).
Surely, though, the City has the authority to ban weapons during a time in which a state of emergency is declared?
No.  In fact, the General Assembly has specifically stated to the contrary:
Nothing in this chapter is to be construed to:
                                                                    *  *  *  *

(3) Empower the Governor, any political subdivision, or any other governmental authority to in any way limit or prohibit the rights of the people to keep and bear arms as guaranteed by Article I, Section 13 of the Constitution of Virginia or the Second Amendment of the Constitution of the United States, including the otherwise lawful possession, carrying, transportation, sale, or transfer of firearms except to the extent necessary to ensure public safety in any place or facility designated or used by the Governor, any political subdivision of the Commonwealth, or any other governmental entity as an emergency shelter or for the purpose of sheltering persons;

Va. Code §44-146.15.   Just to be clear — the last clause, beginning “except to the extent…” refers only to places designated as emergency shelters (like during times of floods or hurricanes).
So neither the Governor nor the Mayor nor anyone else has the authority under a state of emergency to prohibit the lawful possession of firearms.
Here is the tough question — could a locality prohibit the carrying of a firearm in a city park as part of a permit process?

My answer here is a resounding, “Probably not.”  On the one hand, a locality has the rights of any property owner to regulate who uses its parks and how.  On the other hand, §18.2-287.4 outlaws certain firearms in the streets and parks of certain cities, and the implication is that there is no prohibition on carrying other firearms in the streets and parks or other cities.  And here is where we get back to the Dillon Rule.  And remember the Virginia Supreme Court’s statement — “If there is any reasonable doubt whether legislative power exists, that doubt must be resolved against the local governing body.”  That sounds like a state court would hold that a locality does not have the power to restrict firearms possession in a park during a demonstration or rally.

Beyond that, though, we come back to the fundamental problem with August 12 — the III%ers brought in by the Nazis were not actually in the permitted area.  They were in the street, on the sidewalk, or in other areas, but they were not in Emancipation Park.

OK — do these private armies constitute “paramilitary organizations”?  Surely they aren’t legal?
§18.2-433.2 provides that it is a felony to teach others how to make or use guns or bombs “knowing or having reason to know or intending that such training will be employed for use in, or in furtherance of, a civil disorder,” or to assemble with others “for the purpose of training with, practicing with, or being instructed in the use of any firearm, explosive or incendiary device, or technique capable of causing injury or death to persons, intending to employ such training for use in, or in furtherance of, a civil disorder.”  Here, the gun-toters claim that their purpose was to be peace-keepers; how could they be guilty under this Code section?  (See their explanation here.)
The essential characteristic of sovereignty is that the sovereign has a monopoly on the legitimate use of force.  The present state of affairs seems to allow to private militia groups like the III%ers or the Redneck Revolt the power to, if not the right to, walk around like they are contesting the sovereign’s monopoly on the use of force.
The only statute that I have found that gives a law enforcement official the power to prohibit firearms is inherent in the “unlawful assembly” statute — §18.2-406, which makes it a felony for someone who is a part of an unlawful assembly to carry a firearm while participating in an unlawful assembly.
No other Virginia statute gives a state or local law enforcement official the power to tell them to put away their guns, even in deeply unsettled and potentially violent situations.
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