Friday, August 18, 2017

Free Speech and Guns in 2037

By William Hausdorff and Eric Segall

Grandpa, I learned in school today that not so long ago American hate groups were allowed to march through the streets of our town, shouting threats and racial slurs at people, and to carry guns while they did that.  And that some people got killed.

I’m so glad they can’t do that anymore. Can you explain this to me?  Because I really didn’t understand it.  Is all that really true?   

Well, you're too young to remember this, but it all began to change with what happened in Charlottesville, Virginia back in 2017—just about 20 years ago. 

I heard about Charlottesville in school—it’s famous, right? But I can’t remember why.

I’ll tell you.  Back in 2017, we Americans used to have some odd ideas. We thought that having Nazis and the Ku Klux Klan marching through multi-racial/religiously diverse cities with rifles and shouting white power slogans—even though we didn’t like them—was protected by the First and Second Amendments of our Constitution.  In fact, we would congratulate ourselves for being staunch defenders of free speech and the Constitution—we told everybody that we were the model for everyone else in the world!

But grandpa, weren't people scared, especially black, brown and yellow people, when the Nazis and Klan marched by their houses and schools and churches?  And what about non-Christians like Jews and Muslims?  And how about the children?  That would have given me nightmares!

Yes, many people were terrified by this.  But our best lawyers had convinced everyone—it's proudly described in the law books at the time—that letting those people shout, threaten and march with loaded guns through neighborhoods, personally targeting the people that lived there with their threats, was what they called “protected speech.”  These people had a right to express themselves. 

This, I’m afraid, was considered more important than preventing people from being scared, or feeling threatened in their own homes, or kids having nightmares.  

But these odd ideas didn’t start all at once. You might say it started about 40 years before Charlottesville, when our best lawyers had convinced the courts that we had to allow Nazis to march through a neighborhood in Illinois. 

Have you heard of Skokie?  That’s where many Jewish people, including Holocaust survivors, lived. The Justices said that these Nazis had the right to freely express themselves like anyone else, even though they were against free speech for others.

At the time, we Americans were very proud of ourselves, because many countries—especially those in Europe that had been overrun by Nazis in the past—wouldn't have allowed these neo-Nazis or the Klan to threaten people that way.  But we said that the US was strong enough to handle this.

Did the Nazis in Skokie carry guns too, grandpa?

Some might have, but if they did they hid them.  That’s because at that time nobody thought people could openly march with guns.  I think way back then it would have been considered crazy!

But … it was about twenty years later that a group of regular people who own guns, supported by the companies that make guns, began arguing that basically everybody should be able to own a gun and carry it anywhere.  And they eventually convinced those smart Justices, actually only five of the nine Justices, in 2008 I think.  They even decided that people had the right to own assault rifles that could kill many people in just a few minutes. That came a little later.

Was that in the First Amendment too?  Is carrying assault rifles considered “freedom of expression”?

[Chuckles] Not yet!  No, that was the Second Amendment, which talks about this old idea of “well-regulated militias” being necessary for the security of the state, and which was obviously meant to only apply to militias. But then, over 200 years after the Second Amendment was passed, five of those smart Justices, saying they were using history but really using something called “living constitutionalism,” decided that the Second Amendment also applied to owning guns for hunting and for personal self-defense.  It even covered people who engage in hate speech and are thus threatening other people. The Justices also said that states weren't even allowed to have laws that would stop fanatics such as Nazis from carrying guns. 

That's crazy, Grandpa!  Didn't anybody try to stop it?  

Nope, politicians were afraid to lose their jobs if they spoke out against guns.  Moreover, the Supreme court—the smartest judges—said it was part of what made the US the country everyone looks up to.

This is a weird story Grandpa.  But now I’m really getting scaredI thought my teacher said those things aren’t permitted anymore.

Well, that’s where Charlottesville comes in.  Back in 2017, there was a march there for “White Power,” with Nazis and KKK members carrying guns and shouting that they wanted to kill all the Jews.  There were a lot of people who protested them, but the White Power crowd did, in fact, kill one innocent person—drove over her with a car, and injured several others.  Most people were really outraged.

I would think so!!

But then things got even more twisted.  A disturbed man who had become President of the United States 6 months earlier—everyone was very surprised when he was elected—decided that some of the marchers were actually "fine people.”  And he said that on national television.

Many people were upset with the President and upset this happened. All the attention on the news went to the disturbed President, and wondering if he would quit or be fired.  And as you know Trump only lasted one year in office.

But essentially no one—not even the smartest lawyers and politicians—stepped back for a moment and realized there was something crazy about a country that says it is okay for hate groups to march with guns through cities and towns.

That is hard to believe, Grandpa.

It gets worse.  Not surprisingly, the President's compliments made the White Nationalists happy, and they began having more demonstrations in different cities.  This time, however, the counter-protestors (they called themselves the "anti-fascists") began carrying guns too.  Some of them said, “Two can play that game.”

What happened?

What any halfway intelligent person would have predicted.  It was very difficult for the police to stop this.  We ended up having 10 years of bloody battles between White Nationalists and anti-fascist folks in various cities.  Many people died, including some of your relatives.

How did it stop?

It only stopped after there were so many deaths and riots that the country couldn’t take it anymore.  People started to think a bit differently about what really should and shouldn’t be allowed.

Hurray!  But what happened to the First and Second Amendments?

They’re still there, but now they are interpreted a bit differently. What really happened was that after so many deaths, riots, and injuries—some lawyers were killed in one of the great riots of 2027—many politicians and even Supreme Court Justices began to think harder.  Some began to wonder if those countries in Europe with restrictions were perhaps not so stupid.  Those were the countries, after all, that had been overrun by the Nazis, and so had long ago decided that violent, threatening hate speech should not be protected at all, and that people didn’t have a right to carry guns around in public.

We already knew this in 2017, you see, but Americans had this idea that we were exceptional, and that our ideas of free speech and gun rights were better than everyone else’s.

So the Justices revisited an old legal rule—an American rule—they already had.  That rule had said that the government could place reasonable restrictions on the time, place and manner of speech. 

This time, they decided that the rule could be used to make sure that the Nazis and Klan members, when they wanted to speak their hate, had to do it in times and places where they probably couldn’t start fights or be reasonably considered to create a climate of violent intimidation.

But what about the guns?

Just as important, those smart Justices decided that people actually did not have the right to bring guns to protests.  And many more politicians agreed, in public.

Wait, when did they decide that the Constitution gave everybody a right to own guns?

In 2008.

Grandpa, it took them twenty years to figure out that allowing people who are really angry at each other to carry seriously dangerous weapons into the streets and get into arguments was a bad idea.  Twenty years of violence.

I’m afraid so.

Even I know that was a bad idea, and I’m only 11 years old.


Shag from Brookline said...

The surviving Justices of the "Heller Five" just might be squirming a tad with the Heller decision in relation to events in Charlottesville. But the newbie Justice was nominated by Trump and may have no anguish whatsoever. Under Heller the 2nd A seems to trump [sic] the 1st A. Should the "self-defense" of Heller become universal constitutionally, perhaps extended into public facilities including legislatures and courts and all places where the public may gather? Can the Constitution, de facto, turn into a suicide/death pact?

Joe said...

As noted in an article in the NYT, back in the day, the Supreme Court said in Presser v. Illinois that "drilling or parading with arms in any city of the state without license from the governor" can be prohibited.

D.C. v. Heller said "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places." I would think that protests of large groups in public parks can be a "sensitive place."

D.C v. Heller did not decide the question of public carry. It noted with an implication that it was acceptable that prohibitions on concealed weapons were held valid. It was once seen as worse to conceal as compared to have open carry. These days, as the article suggests, there is great feeling that it is the other way around. Open carry has a more intimidation factor and that is often part of the reason it is done (including here).

The Supreme Court has avoided deciding any 2A ruling since the handgun cases except for a minor per curiam on stun guns. D.C. just struck down a law involving carry in public that seems to conflict with other circuits. I think Supreme Court won't be able to wait another ten years (Heller was decided in 2008) to deal with it.

Shag from Brookline said...

Justice Thomas seemed to be champing at the bit to have cert issue on a 2nd A case, I think in the recent D.C. case Joe referenced, as Thomas seems to be a 2nd A absolutist. And I think Justice Gorsuch joined him. I've expressed the view (elsewhere) that Heller's dicta on limitations "saved" the majority decision from potentially joining Dred Scott status in the Court's history.

Joe said...

Yes. Gorsuch joined him. It was one of many times he enthusiastically set forth his views. He is scheduled to keynote speaker along with fellow conservative Judge Bolick at Trump Hotel next month:

The limitations very well might have been a Kennedy (Roberts?) saving clause. Personally, given the potential breadth, made some sense for some liberal justice to concur in judgment on some minimal right to RKBA with a broad power to regulate. I think eventually you might have Breyer or Kagan write an opinion like that, accepting precedent.

Shag from Brookline said...

NPR's "On the Media" this morning focused on the environment, including Ruckelshaus' [?] role in the Nixon and Reagan Admins. and some of his recent comments on the Trump Administration's environmental efforts. In the course of this discussion the name Gorsuch came up, the father or other relative of the Justice, involved in those earlier administrations. I've got to do some cooking and will Google later for details to determine whether the acorn falls close to the tree.

Note: With my desktop computer software updated recently when I type Gorsuch I initially get "Grouch" and have to go back to correct. Am I being computer gaslighted - or does my computer have a sense of humor?

David Ricardo said...

No discussion of the role of the judiciary in this issue can be complete without a strong condemnation of the opinion issued by Federal Judge Glen Conrad of the Western District of Virginia. While direct blame for the events in Charlottesville and the death and injuries lies almost entirely with the bigots who marched there, Judge Conrad has blood on his hands that can never be washed away.

The city of Charlottesville recognized a few days before the protest that they would have difficulty controlling the protesters. This was not the first demonstration in that town and so the city acted to revoke/amend the permit for the demonstrators to move them away from the narrow confines of downtown Charlottesville and to McIntire Park a mile away from the statue where crowd control would be much more effective. Other than that the protesters could carry on as planned.

The organizer of the protest, Jason Kessler, asked the District Court to enjoin the city from forcing the protest to move. Incredibly, and in defiance of all logic, reason, common sense and most of all a lack of concern for public safety Judge Conrad agreed. His logic, if one could call it that, was that by making the protesters move the city of interfering with their First Amendment right of free speech and that the action by the city was driven by their desire to regulate the content of the speech.

This was absurd. The city in no way proscribed or tried to regulate what was going to be said. They simply wanted to move the free speech to a safe place. It is hard, indeed it is impossible to see how the First Amendment must allow a protest in an area where violence is likely to occur when a suitable venue that would have prevented violence was just a short distance away. But this perverse opinion by a judge who lived in a fantasy world resulted in the death of one person and the injuries to many more. One truly wonders how Judge Conrad feels after events proved him wrong and the city of Charlottesville correct. One suspects he doesn’t care.

So the idea that somehow the judicial system can save the United States from it near suicidal belief in unlimited, uncontrolled gun ownership and the right to have open carry in public must first overcome the fact that there are judges like Glen Conrad out there. Not very likely, is it?

Shag from Brookline said...

With my culinary task completed, via Google I learned about this:

How far did that acorn fall from the tree? We may find out as Trump Administration environmental action work there way in the courts.

Shag from Brookline said...

I got two words for Donald J. Trump: "Maureen Dowd." Check her column today for how her late father would categorize Trump.

Marty Lederman said...

None of the "best lawyers"--indeed, no lawyers at all--have convinced "everyone" that threats, or "march[ing] with loaded guns through neighborhoods," let alone "personally targeting the people that lived there with their threats," is "protected speech," or constitutionally protected at all, for that matter. It's perfectly coherent--admirable and right, I'd say--to defend the Nazis' right to march (pursuant to the usual TP&M restrictions, permits, etc.), but not to defend the laws that allow them to carry firearms, and certainly not to defend the notion that carrying firearms on public streets (let alone making true threats) is constitutionally protected.

Shag from Brookline said...

I took Criminal Law in the Fall of 1951. Back in those days there was a lot of black letter law in that field. That was of course before the Warren Court. One of the topics in Criminal Law back then was "Assault & Battery." There were separate crimes of Assault and of Battery, and they could be combined. The crime of Assault could consist of certain threats, including the brandishing of weaponry in various ways. The Court and courts since 1951 have interpreted the 1st and 2nd As in ways that perhaps have been thought to modify what may constitute "mere" Assault in addressing rights under those As. So I appreciate Marty's comment.

Shag from Brookline said...

I just checked in with Take Care Blog and Mike Dorf has a new post there on the point raised by Marty in his comment.

Joe said...

Per Dorf's remarks, it's true that D.C. v. Heller doesn't "hold" that there is a right to carry. But, as with Lawrence v. Texas regarding intimate association, it's hard to read it and think there is completely no right there. He spoke of "sex" but Lawrence v. Texas goes beyond that. I don't think kissing in public can be banned. And, a complete ban of carry, even unloaded in one's car (shades of Lemmon v. NY?) is unlikely to be accepted. Not that any state actually has such an absolute rule.

Also, an apt case (the oral argument available at in this context is Brandenburg v. Ohio, which involved an armed Klan rally at a farm. There is some reference to the firearms in the opinion. The Court held its "advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" test was not met.

The more recent cross burning case cited by Prof. Dorf is related -- some isolated armed protest or cross burning could be protected.

Joe said...

To be clear, the right to carry in public.

Marty Lederman's "time place and manner" proviso was a major issue in this case because the city wanted to place it in another park & that was rejected. The carrying of arms appears to me a "manner" rule, part of the "speech plus" that is traditionally subject to more regulation even under the eyes of Black and Douglas.