by Michael Dorf
(cross-posted on Take Care)
Since the white supremacist march, rally, and mayhem in Charlottesville, some civil libertarians have begun to question whether the white supremacists were entitled to march and rally at all, in light of the fact that they were armed. For example, the Executive Directors of three large ACLU affiliates in California stated: “If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution.” Given the organization's history of defending the constitutional rights of unpopular, even repugnant, speakers, that position has been controversial.
It shouldn't be. As a simple matter of common sense, a march or rally by people who are heavily armed is not an exercise of what the First Amendment calls "the right of the people peaceably to assemble" (emphasis added). Even a child knows that. So what explains the controversy?
Part of the answer is, I suspect, is a fallacy of arithmetic. There is a First Amendment right to hold a rally or a march. There is (let us assume for the moment) a Second Amendment right to carry firearms openly in public. Thus, the logic goes, an armed march is the exercise of two rights, not just one, and should be doubly protected.
However, that logic is false. Constitutional arithmetic is not ordinary arithmetic. Sometimes one plus one equals zero.
Under the Supreme Court's cases invalidating vagrancy convictions (such as Kolender v. Lawson and Papachristu v. Jacksonville) due process protects the right to walk or drive around in public without fear of being arrested by the police, if one has given no indication of having engaged in any unlawful conduct. Likewise, the Fourth Amendment (as construed in Terry v. Ohio) confers the same right against even being stopped by the police. Meanwhile, a line of cases that includes Griswold v. Connecticut and Lawrence v. Texas protects the right of adults to engage in consensual sex.
Does it follow as a matter of arithmetic that the Constitution protects the right of adults to engage in consensual sex in public? After all, there is a (double) constitutional right to be in public plus a constitutional right to have consensual sex. Put them together and you get a right to consensual sex in public, right?
No, of course not.
Some readers might object that my hypothetical example is disanalogous to an armed march because the right to consensual sex comes with an inherent limit: Griswold and Lawrence, the objection goes, protect only a right to consensual sex in private.
That's precisely right, but it is not a disanalogy. It's the very basis for the explanation for why there is no right to an armed rally or march either: When one adds constitutional rights, the limits of each right remain in effect.
Thus, the restriction on the Griswold/Lawrence right remains intact: It only applies in private. You can have sex in private or you can walk or drive around in public. But you can't--as a matter of constitutional right--do both at the same time.
Likewise with respect to an armed march. It is an inherent limit of the First Amendment right to march or rally that groups of people do so peaceably. That's right there in the text of the First Amendment. It's also in the case law.
In the 2003 case of Virginia v. Black, the Supreme Court struck down a Virginia statute that banned cross-burning with the "intent to intimidate a person or group of persons" on the ground that the statute further provided that any cross-burning would be deemed "prima facie evidence of an intent to intimidate a person or group of persons." Crucially, however, the Court made crystal clear that were it not for the prima-facie-evidence provision, the statute would be valid. Justice O'Connor, speaking for a majority in this part of her opinion, wrote that "the history of cross burning in this country shows that cross burning is often intimidating, intended to create a pervasive fear in victims that they are a target of violence." On that basis, cross-burning--even though protected free speech when not an attempt to intimidate anyone--is unprotected when it is aimed at intimidation, i.e., when it amounts to a true threat.
It is only a baby step from the majority's discussion of cross burning in the Black case to the facts in Charlottesville. Can there be any doubt that armed men wearing Confederate and Nazi symbols and chanting slogans thereof marching in public intend to intimidate the usual targets of cross burning?
The First Amendment right to engage in white supremacist and neo-Nazi speech comes with the inherent limit that it must not be intended to intimidate. That limit does not vanish just because there also happens to be (I'm assuming) a right to bear arms in public, just as the limit that the consensual sex right only applies in private does not vanish because there also happens to be a right to go about in public.
Does that mean that every march or rally by people carrying weapons can be banned? No. Just as in Black the Court invalidated the prima-facie-evidence provision because there could be circumstances in which a cross-burning was not meant to be intimidating (a cross-burning on the property of a Klansman, far away from any members of the public who might view it, say), so there could be a rally or march by people carrying weapons that does not pose a substantial risk of violence or communicate a threat (a Quaker march against war, say, in which weapons are carried simply to dramatize their danger).
But in the mine run of cases, the fact that large numbers of armed neo-Nazis and white supremacists gather to rally or march in the center of a city, village, or town will mean that they are not exercising their right to peaceably assemble. They can, as individuals, exercise their putative Second Amendment right to carry arms in public or they can, as a group, exercise their First Amendment right to peaceably assemble and speak via a rally or march in which they are not armed. But the attempt to combine these two rights will, in the typical case, be unprotected.
Finally, note that in the foregoing, I have assumed that the Second Amendment protects a right to carry arms in public. Yet no Supreme Court case so holds. The issue was left open in the Heller and McDonald cases. An en banc Ninth Circuit decision rejecting a constitutional right to carry concealed firearms in public also declined to address that issue, and in June the Supreme Court, over a dissent by Justices Thomas and Gorsuch, denied a petition to review the Ninth Circuit ruling. As Justices Thomas and Gorsuch noted there, the lower courts that have addressed the question whether Heller and McDonald protect a right to public carriage of firearms have reached varying results. It thus remains possible that there is no such right, as I suggested in a paper published shortly after the Heller decision. My point here, however, is that even if I'm wrong and Justices Thomas and Gorsuch are right--that is, even if the Second Amendment does protect the right of individuals to possess firearms outside the home in general--it would not follow that it or the First Amendment protects a right of armed groups to march about our cities, villages, and towns. Sometimes two rights make a wrong.