The Lessons Of Charlottesville: Speech And Guns

The intersection of the First and Second Amendments presents a complicated question, for which there is no simple answer.
08/21/2017 11:49 am ET Updated Aug 21, 2017
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The events in Charlottesville have given rise to a lot of discussion about speech and guns. That is, to what extent do protesters who are otherwise exercising their First Amendment rights also have a right to carry assault weapons and other guns as part of their demonstrations? It turns out that this is a complicated and interesting question, for which there is no simple answer.

First, does the Second Amendment give demonstrators a constitutional right to carry their weapons in public? Although the Supreme Court has held that the Second Amendment protects the right of private individuals to “keep and bear arms,” it has not gone much further in fleshing out the details of this right, and it has not yet considered whether the Second Amendment should be understood to guarantee individuals a right to “open carry.” If the Court were to hold that the Constitution guarantees individuals a right to walk down the street carrying assault weapons – an outcome I think unlikely – then that would go a long way to resolving the question. But that is not the law, and I rather doubt it will ever be the law, so we can move on to the next question.

Second, about half the states allow open carry and half prohibit it. Let’s assume we are in a state that prohibits open carry. Assuming the Second Amendment does not guarantee such a right, the next question is whether the First Amendment protects the right of individuals to carry assault weapons or other guns as part of an otherwise lawful public demonstration. The best argument that could be made by the would-be gun carriers is that they are carrying their guns as a form of symbolic expression that is a central part of the message of their demonstration. The carrying of the assault weapons, they argue, is meant symbolically to communicate their commitment to their cause. The guns are, in effect, a part of their “uniform.”

Let’s assume that this is credible. That is, let’s assume that their purpose is not to threaten violence, but to convey the nature and depth of their beliefs. Symbolic speech is protected by the First Amendment. For example, burning an American flag as a sign of disrespect for the nation is constitutionally protected speech. That being so, is carrying an assault weapon when done for symbolic purposes also constitutionally protected speech? Interestingly, the answer is “no.”

The Supreme Court has held that symbolic speech is protected by the Constitution when the government’s reason for prohibiting the action is to suppress the content of the speech. But if the government’s reason for prohibiting the action has nothing at all to do with speech, and the law therefore has only an “incidental” effect on speech, then the law will almost always be deemed constitutional, even as applied to symbolic speech.

For example, if demonstrators march naked down a public street in order to protest anti-nudity laws, they can constitutionally be punished for violating the anti-nudity laws, which are not themselves directed at speech, even though their nudity in the protest is a form of symbolic speech. Similarly, if an individual urinates on a statue of Robert E. Lee in order to show his contempt for the Confederacy, he can constitutionally be punished for public urination, even though he did his act for expressive purposes.

This is well-settled law, and it would certainly apply to protesters who want to carry guns in violation of a state law that forbids open carry. Thus, in a state that forbids open carry, the demonstrators would not have a First Amendment right to carry their weapons, even if their reason for doing so was to convey a symbolic message.

Third, that brings us to the situation where the state allows open carry generally, but forbids it in demonstrations involving more than X number of people. The reason for this limitation is the state’s concern that, in large demonstrations, the risks presented by the presence of weapons is too great to permit. In this situation, the state is applying a special rule about open carry that is directed specifically at otherwise constitutionally-protected protests.

In this situation, the demonstrators will argue that this violates their rights under the First Amendment, because the only reason for denying them what otherwise would be the state-recognized right of open carry is that they are exercising their First Amendment rights. What happens here?

As a general rule, the government can regulate the time, place, and manner of speech in public places as long as it does so in a neutral manner and has a reasonable justification for doing so. For example, a city can forbid public demonstrations that might disrupt a school or hospital, it can ban the use of loudspeakers in a residential neighborhood at night, it can refuse to permit a demonstration that will unduly block traffic in rush hour, and so on. Thus, even if the desire to carry assault weapons as part of a demonstration is seen as a form of symbolic expression, such a restriction – if applied neutrally to all protests – would likely be constitutional.

Fourth, suppose the government allows open carry in public demonstrations, but only for some speakers and not others? For example, suppose it permits Black Lives Matter demonstrators to carry weapons, but not white supremacist demonstrators? Suppose the government argues, for example, that in the particular location, the presence of guns by white supremacist protesters would frighten citizens much more than the presence of guns by Black Lives Matter protesters.

Such a distinction would clearly violate the First Amendment, because the government must regulate speech in an even-handed manner, and cannot treat people conveying one constitutionally-protected message differently than people conveying another constitutionally-protected message, unless it has a truly compelling justification for the distinction – a test that is next to impossible to meet. Thus, although it can constitutionally ban all guns in these demonstrations, it cannot constitutionally pick-and-choose which messages to favor and which to restrict, even if it has a reasonable justification for the distinction. Put simply, we do not trust government to make such judgments, because of the risk that, if given that power, government officials will manipulate speech to further their own political and ideological goals.

Fifth, suppose the protesters in a particular demonstration carry guns not just to express a symbolic message about the nature and strength of their views, but as a way to threaten others that if they criticize or mock them during the demonstration they will be shot. If the protesters literally told counter-demonstrators that it they criticize or mock them during the protest they will be shot, that would clearly constitute an express threat of violence that is not protected by the First Amendment. It is well-established that such “true threats” can be punished.

The question, then, is whether carrying assault weapons can in itself be understood to constitute such a threat. Is it sufficient that counter-demonstrators reasonably understand this as a true threat, do the speakers have to specifically intend this to be a true threat, are the speakers protected by the First Amendment unless they expressly utter a true threat? This remains an open question under the First Amendment. How, then, should we decide whether the carrying of assault weapons is just symbolic speech, whether it is done merely to deter violence against the protesters, or whether it is an implied true threat designed to intimidate others from exercising their own First Amendment rights to criticize or mock the protesters?

Sixth, to add to the confusion, suppose the protesters are openly carrying their guns not for their own self-protection, and not to unlawfully threaten others with violence, but allegedly to incite counter-protesters to be violent themselves. It is possible that the very presence of weapons would so infuriate counter-protesters that they would be incited to respond with violence, as intended by the demonstrators. Why might the demonstrators want this? Well, the outbreak of serious violence would certainly get them on the news, make them appear to be victims, and give their views lots of publicity and visibility.

So, if this was their actual reason for openly carrying the weapons, can they then be punished for inciting unlawful conduct by the counter-demonstrators? In this situation, the carrying of assault weapons would be like carrying especially offensive and infuriating signs for the purpose of inciting a riot. Can people who do that be punished consistent with the First Amendment? The Supreme Court held in 1969 in a case called Brandenburg v. Ohio, which involved a Klan rally, that even express incitement to violence can be punished only if it is specifically intended to cause violence and the violence is likely to happen imminently.

In theory, that could be the situation in highly-emotional protest situations, but even there the speakers (in this case, the protesters carrying assault weapons with the specific intent to incite a violent response) can be held accountable only if the police have done everything reasonably in their power to forestall the violence. That, of course, depends on the circumstances.

So, where does all this leave us? I hope I’ve provided at least a bit of clarity, But I also hope I’ve demonstrated why much of the commentary on the Charlottesville situation in terms of the issue of open carry and assault weapons has been inconsistent and confused. That is, in short, the state of the law.