Peaceful protesters being met with men carrying military-style weapons. Many of those unarmed were probably intimidated. I certainly think I would have been.
What did the scene represent? Were we looking at a clash of grand constitutional values, a clash between the cherished First Amendment right to protest peacefully and the revered Second Amendment right to bear arms? Or were we looking at something much more mundane?
The answer is the latter. Our Founding Fathers didn’t tie us into a constitutional knot. Our state legislatures, bowing to pressure from groups like the NRA, did so not too many years back.
Nothing in the Second Amendment gives anyone the right to carry a gun whenever and wherever one may choose. In the Supreme Court’s seminal opinion in the Heller case, the late Justice Antonin Scalia emphasized that “the right secured by the Second Amendment is not unlimited.” State regulations, for example, prohibiting “the carrying of firearms in sensitive places such as schools and government buildings,” Justice Scalia explained, were undoubtedly constitutional.
Lower courts have ruled that “sensitive places” include national parks, university football games, post offices, vehicles and aircrafts. If a university football game or a national park can be considered to be sensitive places where guns have no place, surely public assemblies, particularly those that might trigger strong emotions, are as well.
So what stopped Charlottesville from prohibiting demonstrators from carrying weapons this past weekend? A Virginia statute passed in 1997 that precludes Charlottesville from exercising any common sense in such situations. Specifically, Virginia’s law says no city, town, or county in the state can enact any local gun law or administrative policy not authorized by state statute.
In fact, more than 40 states have similar laws. Although the details differ, they generally have one thing in common – they were typically championed by Republican legislators eager to curry favor with the gun lobby.
Some of these laws do not simply tie the hands of local officials, they actually threaten them. Kentucky lawmakers, for example, in 2012 made it a criminal offense for local officials to violate the state’s firearms preemption statute.
A case out of Virginia shows just how irrational that state’s law is. George Mason University, located in Northern Virginia just outside of Washington, D.C., passed a regulation prohibiting the carry of firearms not simply in university buildings but also at any university event. The Virginia Supreme Court rejected a constitutional challenge to the law, holding that both university buildings and university events like football games were “sensitive places” where people congregate and are vulnerable. The reason why George Mason could have such a reasonable regulation while the city of Charlottesville could not is because George Mason is an instrumentality of the state – not a city, town or county.
States are not powerless to change their gun laws. All it takes is the courage to stand up to the gun lobby and the common sense to know that guns and public protests do not mix. Indeed, the events in Charlottesville last weekend prove that the combination is a recipe for disaster. Mayors and other local officials should demand that state legislatures temper their open-carry laws with a little common sense.
This article was published by the Southern Poverty Law Center, an Alabama-based civil rights organization.
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