Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations

By Morgan, Luke | Duke Law Journal, October 2018 | Go to article overview

Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations


Morgan, Luke, Duke Law Journal


ABSTRACT

Armed protest has long been a tool of American political groups. Neo-Nazis, socialists, fascists, antifascists, the Black Panthers, neo-Confederates, and others have all taken up arms not necessarily to do violence, but to do politics. But such protests always risk rending a violent hole in our social fabric. If war is politics by other means, armed protests erase the distinction.

This Note argues that the Constitution's relevant guarantees of individual rights--the First and Second Amendments--do not include a constitutional right to armed protest.

With respect to free speech, it is unlikely that current doctrine would cover armed protests. But, considering ongoing First Amendment expansion, this Note argues for a categorical exclusion of guns, and perhaps other express constitutional guarantees, from expressive conduct doctrine.

As for the Second Amendment, armed protest is not within the historically understood scope of the right to keep and bear arms. More importantly, though, Heller's "sensitive places" exception recognizes a fundamental reality about the relationship between the First and Second Amendments: the Second Amendment must cede certain arenas--churches, government buildings, schools, theaters, protests, and the like--to the First. Instruments of violence cannot be permitted to distort outcomes in the marketplace of ideas.

"Don't take your guns to town, son Leave your guns at home, Bill Don't take your guns to town."

--Johnny Cash (1)

INTRODUCTION

On August 12, 2017, a group of white nationalists gathered in Charlottesville, Virginia, to protest the impending removal of a statue of Robert E. Lee from Emancipation Park. (2) One of the largest gatherings of white supremacists in modern history, (3) the event brought together groups like Identity Evropa, (4) the National Socialist Movement, (5) and Vanguard America, (6) among others. Despite the groups' violent ideologies, one rally leader, Christopher Cantwell, claimed the hallowed mantle of the lawful protestor: "We're here obeying the law. We're doing everything that we're supposed to do, trying to express opinions." (7)

Unsurprisingly, that wasn't the full story. Just seconds later, Cantwell remarked: "We're not non-violent. We'll fucking kill these people if we have to." (8) After retreating from the Lee statue, another white nationalist threatened "to send at least 200 people with guns" back to the statue. (9) There was nothing necessarily illegal about a plan to march 200 armed protestors onto government property. Virginia is an open-carry state; (10) most people (11) can legally carry most weapons (12) in most places. (13) In addition to invoking the First Amendment, the white supremacists operated under a permissive interpretation of the Second. (14)

Activists on the left, arriving to counter-protest, did not bring an olive branch to a gun fight. Armed antifascists ("antifa")-including Redneck Revolt, "a pro-worker, anti-racist organization" that practices "armed community defense" (15)--stood ready with openly displayed assault weapons. (16) Were it not for antifa, Dr. Cornel West said from the scene, community members and clergy "would have been crushed like cockroaches." (17)

Thus, Charlottesville was simultaneously occupied by armed fascists and armed antifascists. Even though each group operated with the implicit blessings of the first two amendments to the Constitution, (18) the outcome was disastrous.

Heather Heyer, an unarmed counter-protester, was killed when James Alex Fields--photographed earlier bearing the Vanguard America insignia (19)--rammed his car into a crowd. (20) The attack injured 19 others. (21) Two police officers, Lt. H. Jay Cullen and Trooper Berke M.M. Bates, died when the helicopter they were using to monitor the clashing factions crashed. (22) In addition to these three deaths, at least thirty-five people were injured in the day's violence. …

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