The events in Charlottesville highlighted, yet again, how gun rights can dilute speech rights. The white supremacists did not arrive with leaflets. Many toted military-style rifles. Their guns, more than hateful words, conveyed a threat that silenced debate and intimidated even the police. Since the armed breakdown of civility in Virginia, one proposed solution has been to call for changes to First Amendment doctrine to “take the Second Amendment reality into account.” But a simpler fix is simply to regulate gun carrying. In fact, a tailored restriction on public carry needn’t be seen as a bold departure from longstanding law — one just needs to look to Second Amendment history and the foundation is there.
Guns have long been regulated in public precisely because they can instill fear. William Blackstone, whose work heavily influenced the drafters of our Constitution, explained that “by the laws of Solon, every Athenian was finable who walked about the city in armour,” and similarly, in England “riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land.” That tradition was adopted in much of the colonies. In 1686, New Jersey enacted a law prohibiting the public wearing of pistols and other weapons because people are “put in great [f]ear.” Similarly, a 1790s Massachusetts law gave justices of the peace the authority to arrest “such as shall ride or go armed offensively, to the fear or terror of the good citizens.”
Strict regulation of public carry went forward in much of the country, but the tradition apparently fell off in Virginia. The armed intimidation we witnessed in Charlottesville would be illegal in New York City, for example, where the only permissible way for civilians to carry guns is concealed and with a license, and military-style weapons are prohibited.
To be sure, New York-style laws likely go beyond what is politically feasible in Virginia. But less aggressive restrictions could have reduced the armed intimidation. Local leaders may have barred open carry during the rally, for example. Virginia law, however, preempts Charlottesville from exercising even that limited authority.
Some might respond by invoking the perennial favorite: the Second Amendment. Such open displays of firepower in Charlottesville have been justified in the past as “a demonstration” of “Second Amendment rights.” That time, a man walked through a grocery store with an AR-15 assault rifle, prompting shoppers to drop their groceries, grab their children, and race out of the store.
But such claims confuse Second Amendment rhetoric with Second Amendment law. Federal courts repeatedly have upheld complete bans on “assault weapons,” laws that go way beyond what might have helped in Virginia.
With strong and reasonable public carry regulation, people could have protested with less fear of lethal violence, tension may not have surpassed the breaking point, and police may have felt safer doing their job. This is as good a time as any to think critically about our gun laws so we can enjoy all the liberties we cherish.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
(Photo: Getty Images)