The Constitution Permits People to Exercise Two Rights at the Same Time

The ACLU has decided to not to defend the First Amendment rights of those who carry firearms to their protests. This decision betrays its historical commitment to protecting the free speech rights of all. First, people do not lose one constitutional right because they are exercising another simultaneously. Second, free speech doctrine offers ample room to address any problems caused by carrying guns.

The Second Amendment is as much a part of the Constitution as the First. And while the Supreme Court has not yet so held, the best scholarship suggests that the Second Amendment includes a right to possess arms outside the home in some fashion.   After all, the right is to “bear arms” as well as to keep them.  But even were there no such constitutional right, so long as having arms outside the home is lawful, a state or a municipality cannot condition that statutory right on giving up First Amendment freedoms. To do so would be a classic unconstitutional condition.

In any event, First Amendment doctrine has resources to deal with threats of violence should carrying guns raise them.  For instance, it would be a reasonable time, place and manner regulation to separate protesters and counter protesters, if groups are armed.

Indeed, Charlottesville could have done so, had it pursed a more sensible legal strategy last week. Charlottesville tried to revoke the permit which it granted the white supremacist group to march in Emancipation Park and move their protest more than a mile away.  But it did not try to move counter protesters from parks only a few blocks away from Emancipation Park.    Judge Glen Conrad ruled that this disparity in treatment was content-based. The political leaders in Charlottesville did not like the speech that would occur in Emancipation Park. (Nor of course do I). Its decision thus could not be upheld as a content-neutral time, place, and manner regulation.

Charlottesville would have been on much stronger grounds if it had flipped a coin to decide which group would be relegated to the park a mile away. It could probably have moved the counter protesters there on the basis of a first-come, first permitted policy.  Keeping armed protesters who sharply disagree with one another far apart can surely  provide the basis a reasonable and neutral time, place and manner restriction. In a world where any substantial protest is now amplified by social media, proximity and place makes less of a difference anyway to the dissemination of a message.

And if any group brandishes arms during a protest or otherwise uses them in a threatening manner, the protest can be shut down under settled First Amendment law as presenting a clear and present danger of violence.

Of course, the ACLU is free to choose to defend whoever it wants.  But its willingness to defend people with whom most of the people in its organization personally disagree, including people legally carrying guns, has been central to its core ideals.  And the ideal of  neutrality is central to the First Amendment itself. While some people claim that only eccentrics want to defend the free speech rights of those who disagree with them, the Supreme Court has done a good job of making that eccentricity the law of the land.  And they have gotten crucial support from civil society organizations and intellectuals of all political views. It would be a tragedy for our nation if the ACLU’s decision begins to dissolve the strong social fabric supporting the ideologically neutral First Amendment.

Reader Discussion

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on August 21, 2017 at 00:26:37 am

Could you even exercise THREE rights at one time--say (1) the right to a speedy and public jury trial, (2) a right to the assistance of counsel, and (3) a right not to self-incriminate? Or, if you wanted assistance of counsel, would you have to give up the right not to self-incriminate (would you have to answer incriminating statements if you accepted a public defender)?

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judging by the cover
on August 21, 2017 at 07:46:05 am

There is no such thing as a Constitutional Right ! The first seven articles of the Constitution tells the federal government what IT MAY DO, the Bill of Rights tells the feds what Natural Rights they may NOT infringe on, prohibit or deny Americans.

The Declaration of Independence tells us that our Rights come from our Creator (God), part of the Natural Law, and that they pre-exist the Constitution or any written document.

Any "right" that is given to you by a piece of paper may be taken away by a piece of paper.

This is an important distinction, our government is the only government ever founded on Natural Law in all history, We should be celebrating this every day !

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on August 21, 2017 at 09:05:43 am

On the one hand, l am pretty much an absolutist when it comes to the 2Am RKBA, arguing that it even extends to Stinger missiles. But on the other, l blanch at the claim that the better scholarship supports unlimited open-carry. The English precedent is contrary, and there is little in the debates during the state ratifying conventions suggesting a radical break from it.

The purpose of a right defines its scope, and it is difficult to credibly assert that you need a Glock at your local grocery or, a fortiori, a peaceful protest. But as the Afghanis have demonstrated, it's nice to have Stingers handy when repelling an invading force.

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on August 21, 2017 at 09:48:44 am

Although I'm confident only concerning the Bay Colony, I think the history of the Bay does support open carry. In England, the practice was that only gentlemen could openly carry arms and, at one time or another, Charles I disarmed puritans as well as catholics. The Bay was egalitarian from the start and all households were require purchase arms for all males over age 16. If the household could not afford arms, the towns were instructed to provide them.

Twice in the history of the Bay the authorities disarmed certain factions. First in 1636-7, the Presbyterian faction disarmed the Independent faction in Boston following the Antinomian Controversy. The Independents were outraged and soon forced the governor and his assistants to charter the Boston Artillery Company, now know as the Ancient and Honorable Artillery Company. By way of the Artillery Company, the Independents gained a great deal of influence in the town meetings, which had effective control over the colony's militia companies.

The situation in the Bay between 1632-92 was that while the governor and his assistants could appoint commanders of the militia formations, they could not order out the militia against the will of the town and the pool of potential officers to command the militia was the Artillery Company, which consistently held itself out at the representatives of the colony wide popular party in their dealings with the governing faction in Boston and Cambridge.

In 1688, the popular party in the Bay revolted against James II's royal governor, Edmund Andros, and threw Andros's local officials, including Joseph Dudley and associates of Cotton Mather, in jail and confiscated the arms of their supporters who remained at liberty.

The Second Amendment can be easily read as simply prohibiting the federal government from doing something similar.

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on August 21, 2017 at 11:35:48 am


I think EK just *eclipsed* your assertions re: public-carry.


Excellent - was unaware (I suppose like many) of the particular history of the Bay colony. I had always thought that the 2nd was intended to provide an effective (possible?) citizen counter to the force of the government should it ever misbehave (a la - British military impositions of recent vintage); then again, a simple means of assuring this would be to proscribe the government from confiscating weapons, etc.

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on August 21, 2017 at 15:28:19 pm

I was in complete agreement until you wrote this line: "But its willingness to defend people with whom most of the people in its organization personally disagree, " The ACLU has been increasingly biased in the issues it takes on. In addition to ignoring the Second Amendment, it also ignores the Free Exercise clause while vehemently supporting the Establishment clause.

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Image of Phil
on August 22, 2017 at 08:23:49 am

EK is remarkably well-versed in political developments of the day, and continues to impress.

The methodology is sound: You can't remove COTUS from its culture. By way of example, the trial of William Penn essentially mandates a reading of the 9Am you seem to despise: Rights are not bestowed by governments, and are presumed to be retained unless expressly ceded (Barnett's "presumption of liberty").

What l don't know is the pertinent details of the culture. Muskets were clumsy, and it seems rather unlikely that the average Puritan would pack his piece when going to the barn dance on Saturday night or church on Sunday. Time, place, and manner restrictions only run afoul of the 2Am when they are unreasonable.

And l am loath to speculate. While doing research in LS, l came across records from the Bay Colony showing church attendance of ~20%. We are taught to think of them as zealots, but they appear to have been a lot like us.

The prefatory clause of the 2Am is not dispositive (to liberals' great chagrin), but in historical context, makes perfect sense. To have a right, you must have the means to vindicate it when abridged:

"If a plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal."

Ashby v. White [1703], 92 Eng.Rep. 126, 136 (K.B.).

The right the 2Am seems to protect is the right to revolution, which the Framers resorted to in 1776. That just doesn't translate well into the right to pack heat at the local fair, and what little scholarship l have seen (Kopel and Natelson [whom l have spoken/corresponded with] are outliers) and what l have gleaned from Elliot's seems to support this reading.

Truth be told, l'm not a big RKBA guy. Where it matters, the scholarship appears settled; it is doubtful that Colonial America was Somalia North, and there is little that would suggest any reading of COTUS that would please those who would rather sleep with their guns than their wives. Conversely, Larry Tribe seems lost in the ionosphere.

Count me as remaining open-minded--EK does solid work--but highly skeptical. Before going to LS, l practiced as a CPA; l'm naturally inclined to think in terms of internal controls. This is not the problem they appear to be trying to solve.

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on August 22, 2017 at 08:29:41 am

l don't think they win this case and besides, there are other NFPs in a better position to serve as advocates. JMc has taken a Kierkegaardian leap here, which l think is unwarranted.

NFPs can cherry-pick their cases, and they may have better ones in the hopper.

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on August 23, 2017 at 08:01:44 am


What are you talking about: "reading of the 9th I seem to despise" ????

a) I agree with Barnett on presumption of liberty; where we may differ (in shorthand as volunteer work awaits) is in the extent to which I believe it permissible for the States to exercise certain police powers - a question of degree - not "kind"

b) righto - on Puritans. They were somewhat more *libidinous* (as contemporary) letters, even civil complaints attest) than is commonly believed.

c) "pack heat at the local fair" - luvv'd it. Although, I suppose it would depend upon the political climate at any particular moment. If the right to revolution is the right the Framers sought to protect, it follows that were the government to act in a manner not dissimilar to the old Recoats, citizens could (should) be exoected to pack heat at the local fair or grocery store or now at the brick and mortar Amazon book stores.

gotta go.

take care

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Image of gabe
on August 25, 2017 at 09:08:27 am

gabe: " I agree with Barnett on presumption of liberty; where we may differ ... is in the extent to which I believe it permissible for the States to exercise certain police powers."

On what principle do you rely? The Barnett principle (also, Madison's) is that rights are retained unless/until they are expressly ceded. Police powers can only be exercised in parens patriae, enforceable pursuant to duly enacted laws.

Why do you want more police powers (the majority, telling the individual what to do) that COTUS gives you?

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