Charlottesville, The Constitution, & The Challenges Of Armed Free Speech

Armed militia members in Charlottesville, Virginia (photo credit: New York Times)

August 11th and 12th, 2017. Charlottesville, Virginia.

In the preceding months, Jason Kessler, a prominent white nationalist, and his ideological compatriots, vocally opposed plans by the city’s leaders, to remove a statue of Confederate military leader Robert E. Lee, located in Charlottesville’s Emancipation Park. Kessler’s fellow white nationalist Richard Spencer, as well as members of the Ku Klux Klan, held events in support of the Lee statue, in May and July 2017.

Kessler, Spencer and others decided to host a larger rally, known as the Unite the Right rally, in in August. This gathering brought together hundreds of white nationalists, chanting slogans such as “Jews will not replace us”, and numerous racial slurs, while holding Nazi and Confederate flags.

Kessler and his were countered by protesters, both community members, as well as members of Antifa, a self described anti-fascist movement, which physically disrupts demonstrations and clashes with opponents. Fights between Antifa and white nationalists broke out during the event.

The brutal beating of counterprotestor DeAndre Harris, by white nationalists, gained widespread attention, as did a video of Richard Preston, a white nationalist, firing a gun at opponents. Heather Heyer, a 32 year old counterprotestor, was killed, and several others injured, when James Fields Jr., a known white supremacist, drove a car into a crowd of counterdemonstrators. Two Virginia police officers who were conducting helicopter surveillance on demonstrations also died, when their aircraft crashed.

Members of various militias also appeared at the rally, dressed in camouflage, and armed with rifles. Members of these groups lean conservative, and strongly oppose any perceived encroachment on constitutional freedoms. Militia members in Charlottesville stated they were present to protect the free speech rights of all, rather than to support any side. One of the militia leaders, Christian Yingling, condemned white nationalism, although some militia members displayed Confederate flags on their clothing. Members of Redneck Revolt, a group of mostly anti-capitalist white individuals, who advocate solidarity with people of color, also appeared, armed with rifles. Additionally, based on gunfire from Mr. Preston, as well as photos from Charlottesville, amongst those who openly carried firearms, were white nationalists, participants in Unite The Right.

The First Amendment states that “Congress shall make no law respecting….the right of the people peaceably to assemble…”. This clearly protects the rights of citizens to gather in a non violent fashion.

With public demonstrations, courts balance the rights of citizens to gather and express opinions, with the need for governments and law enforcement to maintain order. While governments can impose restrictions on the “time, place and manner” of protected speech, they cannot restrict speech based on content. Thus, a governmental body is allowed to require a permit for a public assembly, be obtained in advance, as long as such rules are not crafted to hamper a particular type of speech (i.e. what is being said).

Such restrictions must be “narrowly tailored to serve significant governmental interests”, like the preservation of order. Requiring demonstrators to obtain a permit, prior to assembling, is permissible (as long as permits are not issued based on content). Additionally, localities can restrict noise levels and marching routes of a demonstration (as long as “narrowly tailored.”)

In May 2017, Kessler applied for a permit with Charlottesville city officials, to hold a rally in Emancipation Park (at that time named Lee Park), to protest plans to remove the statue of Robert E. Lee. Kessler’s permit was granted on June 13. Then, on August 7, the city government revoked Kessler’s permit, ordering Kessler to move Unite The Right to another park, more than a mile from Emancipation Park.

Kessler countered by applying for an emergency injunction in federal court, to allow Unite The Right to proceed. Kessler, who was represented by attorneys from the ACLU’s Virginia chapter, as well as the Rutherford Institute, prevailed in court. Judge Glen Conrad found that the withdrawal of Kessler’s permit was motivated by “the content of his speech, rather than other neutral factors that would be equally applicable to Kessler, and those protesting against him.” Unite The Right went forward.

What about the Second Amendment? The Second Amendment states that “A well regulated militia, being neccessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Despite the “militia” language, this provision has been interpreted by the Supreme Court to allow for an individual right to own guns, as stated by the Supreme Court, in DC v. Heller (2008) and further articulated in McDonald v. Chicago (2010).

The vast majority of states allow individuals to carry concealed firearms, either without permits, or upon meeting basic requirements, such as completing gun safety courses, or passing background checks. Of course, locations where one may carry a firearm vary considerably, with many states restricting schools, bars, workplaces and government buildings.

Open carry of firearms (as seen in Charlottesville), is allowed in some form in 45 states, with variations in terms of permit rules. In Virginia, no permit is mandated for open carry of guns, including rifles. Also, few restrictions are placed on gun owners from outside the state (hence, militias from outside Virginia carried firearms without interference). What’s more, under Virginia law, cities like Charlottesville are forbidden from enacting gun restrictions of their own; similar rules exist in many states,

Charlottesville is hardly the first public gathering where observers or demonstrators carried guns. In 1967, members of the Black Panthers visited the California State Capitol (where California’s legislature and governor work) with pistols and shotguns, in protest of proposed gun restrictions. In recent years, members of the Oath Keepers militia patrolled with semiautomatic rifles, at demonstrations in Ferguson, Missouri, organized in response to the shooting death of Michael Brown, at the hands of local police. Last year, supporters and opponents of a mosque in Dallas faced off with loaded rifles. Around the same time, an Arizona campaign rally for Donald Trump attracted armed members of an anti-Trump organization, who indicated they were present to protect those demonstrating against Trump.

This raises the question: What should be done when the boundaries of the First Amendment and Second Amendment conflict? How do we balance the right to free speech, as guaranteed under the First Amendment, with Second Amendment protections for the right to bear arms?

I am a longstanding supporter of the Second Amendment. I support the rights of individuals to own a range of firearms, including rifles like the AR-15. I believe that states should issue concealed carry permits to those who complete gun safety courses, and pass background checks. Some restrictions on where one can carry guns (such as bars, schools, or government buildings), seem reasonable. I am also not opposed to restrictions on “bump stock” modifications to rifles, to prevent them from being turned into automatic weapons.

Yet, it is clear to me that openly carrying firearms, particularly shotguns and rifles, at a demonstration or political rally, poses intolerable risks. Enforcing order and ensuring public safety at a demonstration, becomes far tougher. First Amendment rights are weakened through intimidation, while the roles of law enforcement and private citizens become increasingly blurred.

As mentioned earlier, during the anti-mosque demonstration in Dallas, demonstrators from each side carried shotguns and rifles. Police officers stood between the two groups, as well as on nearby rooftops. Although violence was averted, it isn’t hard to imagine how quickly this situation could have escalated. The only spark needed is for a single individual, in a fit of anger or bravado, to fire a weapon, (or shout an insult, which leads to someone else opening fire), and a wave of bloodshed could be unleashed, putting demonstrators, law enforcement, and bystanders in grave danger.

Heavily armed demonstrators can have a negative impact on free speech. As a piece by David Frum in The Atlantic noted, the presence of openly armed individuals in places like Charlottesville “sent a chilling message of warning to lawful protestors.” This dynamic was vividly illustrated in Arlington, Texas, when heavily armed open carry advocates walked by a meeting of anti-gun advocates (mainly mothers, some of whom were were with their children), generating considerable fear and intimidation.

The presence of someone carrying large firearms at a gathering or demonstration, understandably conjures up fears of violence (especially when individuals on the other side are unarmed). While public displays of weapons have become more common, as open carry laws have spread, those exercising their right to speak, gather, and protest, could reasonably feel intimidated, and decide to steer clear of such events. By their very presence, openly carried firearms can dampen the exercise of First Amendment freedoms.

Another issue, seen in Charlottesville, was that militia members wore military-style uniforms, and carried rifles, rendering them almost indistinguishable from members of the National Guard, who were called to Charlottesville. In the event of any disturbance, people might be uncertain as to who they should seek help from.

Confusion could erupt between members of the National Guard, or other law enforcement agencies, and militias, potentially leading to tragedy. This became an issue in the July 2016 murders of five police officers in Dallas, at a demonstration against the killings of black men by police. Some marchers were armed with AR-15 rifles. Since the shooter wasn’t visible, until he was caught, police viewed armed demonstrators as potential suspects.

Yet another issue, is how armed observers (i.e. militia members), or demonstrators, react to provocations. What if an (unarmed) demonstrator throws objects or shouts insults at a short-tempered, armed militia member? What if unarmed protestors yell insults or threats, at armed demonstrators who hold an opposing viewpoint? Things could get very bad, very fast.

Finally, a private citizen’s role isn’t to ensure order at public gatherings. That’s the job of local and state police, and, if needed, the National Guard. Militia members, whether Christian Yingling’s colleagues, members of Redneck Revolt, or any other group, should not play any role in defending the rights of demonstrators. By allowing members of these groups to effectively deputize themselves as members of law enforcement, the primacy of the police and National Guard in maintaining order, is undermined.

Here’s a compromise: No matter what open carry laws a state may have, no one, outside of law enforcement officers, may openly carry or display a firearm, within 1,000 feet of a public gathering or demonstration, for which a permit was issued. Such restrictions would not, however, apply to concealed firearms, whether carried by demonstrators or observers (i.e. militias), assuming those carrying such weapons, are in compliance with state law.

This rule would pass constitutional muster. As Justice Scalia noted in Heller, “the right secured by the Second Amendment is not unlimited….not a right to keep and carry any weapon whatsoever in any manner whatsoever, and for whatever purpose….” Restrictions on what types of guns can be carried in certain public settings, is likely to be found constitutional.

While I prefer that no one at a demonstration (outside of law enforcement) be armed with any kind of weapon, such laws are logistically difficult to enforce. Thus, restricting open carry (easily enforceable) makes sense. Since guns won’t be visible, it reduces many risks mentioned earlier, including intimidation of peaceful protestors, confusion between police and armed demonstrators, as well as private armed groups playing a role in law enforcement. The potential for carnage, posed by high-caliber weapons in public, will also decrease.

The First Amendment and Second Amendment are vital components of our framework of rights. For me, it is hard to imagine our nation without the right to speak our minds, or the right to bear arms. Yet, balancing these rights will require some compromises. At the next Charlottesville, individuals must still have the right to say things that I believe are incredibly hateful and patently wrong. But this time, guns should not be visible.