You are here: Home / News / Political Demonstrations and Guns

Political Demonstrations and Guns

Published by lloyd on August 16, 2017

I was in downtown Charlottesville on Saturday, and the single most disconcerting, disorienting, confusing, troubling thing I saw was the “militia” brought in by Jason Kessler and his friends to “protect” their rally.  As this picture shows, these militia members — 32, I am told — were dressed in camouflage, some wearing what looked like bulletproof vests, all carrying AR-15s or similar guns. Some were wearing helmets. Some aligned with the Unite the Right folks had riot shields.

The Virginia State Police were there, of course, and they had a riot squad dressed in dark blue or black, with bulletproof vests and AR-15s. The National Guard were there, in a more consistent camouflage, with bulletproof vests and AR15s. The best way to tell if someone was with the militia or the National Guard was to look for the presence of a patch on their arm — advice that, to me, sounded like “You can tell it’s a rattlesnake if you get right up close enough to see the pits in front of the eyes.”

For me, camouflage + bulletproof vests + semi-automatic rifles says “military.” For some, that might be a reassuring presence. At the least, it should mean that we have some idea of who is controlling them.

The essential characteristic of sovereignty is a monopoly on the legitimate use of force. To bring it home even more, an essential characteristic of sovereignty in this day and time should be a monopoly on deploying 30 or more AR-15-carrying people into a crisis zone. And if a government has the right to a monopoly on that kind of force, that means that the government also has the right to restrict others from deploying that kind of force.

So here’s the legal question — does a state or local government have the authority to say, “No guns at a political rally”? How about, “No guns at a political rally where a state of emergency has been declared by civil authority”?

My friend Dahlia Lithwick has written a great piece on the intersection of the First Amendment and the Second Amendment on Saturday, beginning with the same photo.  I want to talk a little more about the “guns” piece of this, and it is only slightly a Second Amendment problem.  Caution — I am about to terribly over-simplify the problem.

Conduct/Symbolic Speech:

The primary First Amendment principle is that there can be no restriction on speech based on the content of the speech.  What may seem like simple “conduct” can also be “symbolic speech.”  So when Paul Robert Cohen wore a T-shirt that said, “Fuck the draft,” and got arrested for it, the discussion was over whether wearing a t-shirt was “speech” or “conduct,” and the Supreme Court held that it was “speech” in that it was intended to communicate a message.  Cohen v. California, 403 U.S. 15 (1971).  Cross-burning — though obviously “conduct” — also has a “speech” component:

… the burning of a cross is symbolic expression. The reason why the Klan burns a cross at its rallies, or individuals place a burning cross on someone else’s lawn, is that the burning cross represents the message that the speaker wishes to communicate. Individuals burn crosses as opposed to other means of communication because cross burning carries a message in an effective and dramatic manner.
Virginia v. Black, 538 U.S. 343, 360, 123 S. Ct. 1536, 1548, 155 L. Ed. 2d 535 (2003).

The argument is made in these cases that carrying a weapon openly is an assertion of one’s Second Amendment rights, and that it would be an infringement of someone’s First Amendment rights to not allow the assertion of the Second Amendment rights.  In the case of the Unite the Right rally, they were not asserting that the militia were there as a part of their speech, but for the “security” of the entire operation.  So the First Amendment question is not really directly engaged by this issue of whether the militia could be decked out to look like the National Guard.

A First Amendment problem would have been presented if there had been an attempt to restrict the rally attendees’ carrying of weapons.  (And make no mistake — many of them were armed.  See this clip from an HBO documentary on the weekend events, if you had any doubts.)

The Right to Openly Carry a Firearm:

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court, 5-4, said for the first time that the Second Amendment guarantees a personal right to possess a firearm.  In addition to the legal significance of Heller, though, the case marked the ascendancy of the political argument that limitations on the personal possession, carrying or even use of a firearm are going to be deemed unconstitutional.  From a purely legal point of view, that is a gross overstatement of what Heller said, but the popular perception is that the government can’t limit personal possession, carrying or use of a firearm.  This perception has led to statute changes in many states to establish:

  • That there can be no limitation on “open carry” of firearms;
  • That limitations on “concealed carry” of firearms should be reconsidered, and perhaps repealed;
  • That a “concealed carry” permit issued in one state must be honored by the other states; and
  • That not even during a state of emergency declared by the Governor can the right of a citizen to carry a firearm be limited.

In fact, the Supreme Court has not endorsed these “Heller 2.0” arguments, but some legislatures have, some lower courts have, and most Second Amendment advocates believe that these Heller 2.0 arguments are accepted constitutional principles.

I’m not going to attempt to canvass the law thoroughly, but the most recent decision that I have seen on this point is out of the D.C. Circuit, the court where D.C. v. Heller had originated.  That Court noted two other decisions on the propriety post-Heller of limits on concealed carry:

… the Third Circuit relied on the reasoning of the Second and Fourth Circuits for its decision to submit good-reason laws to intermediate scrutiny. See Drake v. Filko, 724 F.3d 426, 430 (3d Cir. 2013) [upholding a limitation]. The only other circuit to address the issue, the Ninth, reasoned that a good-reason limit on concealed carry must be lawful since outright bans on concealed carry have been upheld.  Relying on this whole-includes-its-parts reasoning, the Ninth Circuit expressly sidestepped our question of “whether the [Amendment] protects some ability to carry firearms in public, such as open carry.” Peruta v. Cty. of San Diego, 824 F.3d 919, 927 (9th Cir. 2016) (en banc).

Wrenn v. D.C., No. 16-7025, 2017 WL 3138111, at *8 (D.C. Cir. July 25, 2017).
The D.C. Circuit declared that:
1.  The individual right to carry common firearms beyond the home for self-defense, even in densely populated areas and for those lacking special self-defense needs, falls within the core of the Second Amendment’s protections;
2.  The law that required that someone wishing to carry a concealed weapon show “good reason” to be allowed to do so was categorically barred by the Second Amendment; and therefore
3.  The court would issue permanent injunction enjoining enforcement of “good reason” law.

Wrenn would seem to mark the apex of the Heller 2.0 logic, and if you can’t restrict concealed carry permits, it seems likely that the Court would also say that you can’t limit open carry either.  (I predict that this case will be decided in the U.S. Supreme Court, perhaps as early as next June.)

Here in the Fourth Circuit, the Court is a lot less certain:
This case underscores the dilemma faced by lower courts in the post-Heller world: how far to push Heller beyond its undisputed core holding. On the question of Heller‘s applicability outside the home environment, we think it prudent to await direction from the Court itself. See Williams v. State, 417 Md. 479, 10 A.3d 1167, 1177 (2011) (“If the Supreme Court, in [McDonald‘s ] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.”); see also Sims v. United States, 963 A.2d 147, 150 (D.C.2008).
There may or may not be a Second Amendment right in some places beyond the home, but we have no idea what those places are, what the criteria for selecting them should be, what sliding scales of scrutiny might apply to them, or any one of a number of other questions. It is not clear in what places public authorities may ban firearms altogether without shouldering the burdens of litigation. The notion that “self-defense has to take place wherever [a] person happens to be,” Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self–Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1515 (2009), appears to us to portend all sorts of litigation over schools, airports, parks, public thoroughfares, and various additional government facilities. And even that may not address the place of any right in a private facility where a public officer effects an arrest. The whole matter strikes us as a vast terra incognita that courts should enter only upon necessity and only then by small degree.
United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011).
In short, in the eyes of the Fourth Circuit, who knows?
Virginia State Statutes on Point:
Va. Code §15.2-915 makes clear that no local government has the power to enact a local ordinance that limits the right to possess or carry a firearm:
No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute.
Surely, you might think, someone has the authority in a declared state of emergency to ban the possession of firearms in a demonstration zone?
No.  The Virginia General Assembly has declared that neither the Governor nor the Mayor or Chief of Police has the authority to restrict the possession of firearms during a time of declared emergency. Va. Code §44-146.15:
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;

To completely aside from the fact that the Second Amendment law is not clear on the point, Virginia law does not apparently allow any official to ban guns from any place, even in a time of a declared emergency.

Fourth Amendment:
Suppose the City decided to say, “We’ll condition your permit for a rally on saying, ‘no guns.’  Or on allowing everyone to be searched for weapons.”  Would that be OK?  Perhaps.
The cases that have discussed this have done so on a Fourth Amendment rationale — to look at whether the search, even with a metal detector, violates the Fourth Amendment.  After all, you cannot have your rights under the First Amendment conditioned upon your agreement to allow your Fourth Amendment rights to be violated.
These cases have held, in essence, that if the government has a particular reason to fear violence at a particular rally, government may take reasonable actions — including searching for weapons — to make the place safe.  The key is that the City could not say, “We will condition every permit for every rally on setting up a metal detector.”  But the City COULD say, consistent with the Fourth Amendment, “We have specific reason to fear violence, and to fear armed violence in particular, and we have adopted this plan to scan everyone with a metal detector wand in reasonable response to that particular fear.”  The problem, though, is that the City of Charlottesville probably still does not have the statutory authority to do so.
Now, for two practical questions.  Assume for the moment that the next time the neo-Nazis come back, they want a permit again.  Assume that the City were to say, “We’ll give you a permit, but there will be a ban on possessing weapons in the rally, and we’ll enforce that with metal detectors.”  Assume that they take the position that whatever limits there may be on the City’s power to enact a broad prohibition, the City can still impose a reasonable condition on the granting of a permit.
1.  The “militia” that came out on August 12 didn’t bring their AR-15s in to the Unite the Right rally, and in fact the fight that closed the rally down didn’t take place in the area covered by the permit.  Under the terms of the permit, you might be able to bar guns from the park, but you could not, under this authority, ban guns from the area generally.  So you’re still going to have guns that are not limited or restricted.
2.  The organizers might just say, “In that case, we don’t want a permit.”  Then the City has no authority to do anything to attempt to control the rally.  And then where are we?
These are not easy issues, either in court or out in the field.
A possible legislative fix:
My original concern was about the “militia” members standing guard with their AR-15s.  There are three specific statutory changes that should be adopted by the Virginia General Assembly:
1.  Make it illegal for someone to wear military-style clothing and body armor while possessing a firearm.  That would outlaw the militia members who are so readily confused with the National Guard.
2.  Repeal the provision of §44-146.15 that prohibits any restriction on the right to carry a firearm in a place where a state of emergency has been declared.
3.  Give a locality the power to condition the granting of a permit for a public gathering on the approval by the locality of a security plan that is tailored to the specific situation.
Posted in , , Tagged