Guns vs. free speech: Richmond bans guns at protests

This article contains news with liberal commentary.

The Richmond, Virginia, city council with the police chief’s support has adopted an ordinance prohibiting carrying guns on public property at protests and other events, despite complaints from gun advocates that the ordinance violates their “Second Amendment rights,” ABC News reported on Wednesday, September 9, 2020. (Read story here.)

Virginia gun laws are complex (summary here). State preemption is partial, and while Virginia is generally an “open carry” state, a CCW permit is required to carry assault weapons in cities with local ordinances more restrictive than the state law. The Richmond ordinance goes even farther.

The police chief, citing recent shootings at protests, warned, “Sooner or later, we are going to have different groups with different opinions who square off with each other.” In fact, that happened at this year’s Kentucky Derby, where opposing militias faced off against each other, although the only shooting was accidental. (Story here.)

An issue he didn’t specifically address is the chilling effect that brandishing weaponry has on the free speech rights of others. For example, on July 4, 2020, hundreds of gunmen gathered at Gettysburg in reaction to false rumors that protesters planned to burn American flags — a constitutionally protected form of free speech. What if a flag-burning protest had actually taken place? Does anyone believe the gunmen wouldn’t have forcibly interfered?

As it turned out, a visitor with a “Black Lives Matter” shirt was ejected by park police, while a gunman with a Nazi helmet was allowed to stay (see posting here), graphically illustrating how twisted things become when one side is armed and the other isn’t. But what if both sides are armed, a logical consequence of equal rights? Then you could get something akin to a civil war.

The Richmond city council’s action culminated a debate probably set off by a protest there in January 2020, when gunmen descending on the state capitol to oppose gun bills in the legislature frightened people away from the legislative hearings. A law professor remarked then, “The right to bear arms in political debate is not the power to speak for oneself; it is, at least implicitly, the power to silence others,” which actually happened in that instance.

Militia groups sometimes brazenly intimidate political opponents, as in Dallas in 2013, when 40 gunmen took up firing positions outside a restaurant where 4 women were meeting to discuss gun control legislation (photo, right), about the clearest illustration you could have that things have gone too far.

So far, legislative and courts haven’t come up with satisfactory solutions to gun-waving bullies. The current status of debates is summarized, more or less, here. Briefly:

To date, courts haven’t said toting guns at protests violates the free speech rights of others by chilling the exercise of those rights.

“Some legal experts disagree with the jurisprudence and believe that guns in public spaces are incompatible with a functioning democracy,” which is basically my position, while others complain the Supreme Court’s recent gun rulings have created a “super right” that overrides other rights.

Despite the shortfalls of current jurisprudence, the Supreme Court hasn’t left states and municipalities completely defenseless. They still have some legal tools at their disposal. They can make no guns a condition of demonstration permits, and enforce long-neglected laws that prohibit public paramilitary gatherings. The latter is especially needed as armed militias grow in size and number, and invade our public spaces with the intent of drowning out other political speech.

That people are allowed to brandish guns in order to frighten political opponents is itself frightening and deeply disturbing. The street parades we see today (top left) are all too reminiscent of Germany in the 1930s. When they do so, they’re taking away others’ freedom. In 2017, after the deadly Charlottesville white supremacist gathering, the ACLU — a longtime staunch defender of free speech — announced it would no longer represent paramilitary hate groups (story here), recognizing that parading guns in public isn’t free speech, it’s making threats, and that’s how the law should treat it.

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