Bay Area demonstrations by right-wing groups scheduled over the weekend fizzled in face of massive opposition protests, defusing fears that Charlottesville-like violence could erupt in San Francisco and Berkeley. Indeed, protests in San Francisco were peaceful, and the few scuffles that did occur in Berkeley seemed instigated by black-garbed Black Bloc protestors, according to many reports.
But people and groups associated with the “alt-right”—an amalgam of neo-Nazis, white supremacists, “citizen” militias, and hyper-conservative prayer groups—have vowed ongoing demonstrations in other American cities in coming months. And that’s led to profound public safety concerns.
Charlottesville, after all, wasn’t marked solely by the murder of a young woman by an ISIS-like car attack. Some of the most enduring and disturbing images of the event were of right-wing protestors openly toting assault-style long guns and semi-automatic pistols (including this video of a white supremacist who was arrested yesterday for discharging his pistol in the direction of counter-protestors). It takes no great stretch of the imagination to contemplate the horrors that might have resulted if wholesale gunfire had erupted.
And though no firearms were in evidence at the weekend’s Bay Area demonstrations, some media have reported concerns that other elements may be arming themselves in fears of gun-crazed and goose-stepping hordes of neo-Nazis and white supremacists invading their neighborhoods.
The Second Amendment gives you the right to bear arms, but really, that’s the beginning point of the conversation…the intent is not totally clear.
Authorities in Charlottesville allowed demonstrators to display firearms because of the state’s “open carry” law. California’s firearm regulations are much stricter, but the basic right to carry guns in public remains murky. The language of the Second Amendment, which assures the right of citizens to keep and bear arms, is simultaneously explicit and opaque.
“The Second Amendment gives you the right to bear arms,” says Jesse Choper, a UC Berkeley Law professor emeritus and the former Berkeley Law dean. “But really, that’s the beginning point of the conversation. As is true with most of the Bill of Rights, the intent is not totally clear, and in fact, the language in the Second Amendment is particularly confusing.”
That confusion, of course, is largely due to this line: “…A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
For decades, legal scholars and advocates on both sides of the gun control issue have differed over the intended meaning of the Founding Fathers. Did they mean that only those citizens who are organized into official militias by local or regional jurisdictions have the right to bear arms? Or that anyone can keep arms because they might eventually join a “well-regulated” militia? And what about the storage of the arms themselves? Can citizens keep them in their homes, or only in armories that supply the cited well-regulated militias? Further, even assuming that every law-abiding citizen can own firearms, does that right extend to locked-and-loaded open carry in public?
Choper observes the U.S. Supreme Court tacked the issue in the 2008 landmark case, District of Columbia v Heller, and that the justices’ ruling defines basic gun rights today. The majority opinion for that case was written by the late Antonin Scalia, a fervent Constitutional “originalist” and ardent gun enthusiast.
“The interesting thing about District of Columbia v Heller is that Scalia had to accommodate the other four justices who ultimately sided with him, ” Choper says. “As a consequence, it provides a very limited interpretation of the Second Amendment. It stipulates that a person has the right to own a gun to protect himself or herself, family, and property. That’s it. The decision does not imply the right to carry a weapon in public, including public buildings.”
Just as it would be hard to punish cities in an open carry state for allowing open carry during demonstrations, it would also be difficult to challenge authorities trying to stop trouble before it starts by banning firearms.
When it comes to applying District of Columbia v Heller in the streets, continues Choper, “[Cities] can find themselves between a rock and a hard place. They want to respect the right of free speech, and they need to protect public safety. Given that [public carry] currently is not protected by the Constitution, cities have the right to enforce ‘no gun’ rules.”
But municipalities located in open carry states may choose not to invoke gun strictures; and that’s what appears to have happened in Charlottesville. It raises the question: are cities that refuse to ban guns at public demonstrations liable if anyone gets hurt or killed?
“It would be an uphill battle to make liability stick for any [gun-related death] if the city is in an open carry state,” Choper says. “That isn’t to say authorities shouldn’t or couldn’t try to stop [people carrying guns during demonstrations]. So just as it would be hard to punish cities in an open carry state for allowing open carry during demonstrations, it would also be difficult to challenge authorities trying to stop trouble before it starts by banning firearms. All rules and laws have exceptions under extraordinary circumstances. No right, including the right to bear arms, is absolute.”
California cities, at least, are unlikely to face the dilemma of Charlottesville. Though the weekend demonstration planned by Patriot Prayer for Crissy Field was cancelled, San Francisco authorities had moved decisively to ban firearms from the event. Comments provided by John Coté, the spokesman for City Attorney Dennis J. Herrera, confirmed that state law prohibits the open carry of both long guns and handguns in urban and suburban areas, with some exceptions for counties with fewer than 200,000 people (not San Francisco County, obviously).
“Someone with a concealed carry weapons permit issued by a sheriff or police chief in California (not any other state) can carry a concealed handgun in parts of San Francisco, but San Francisco bars possession of all firearms, even with a concealed weapons permit, on city property, including city-owned parks,” Coté wrote.
Crissy Field, the site for the planned Patriot Prayer demonstration, is part of the federal Golden Gate National Recreational Area, and it conforms to all California state gun control laws. The open carry of firearms in public is illegal in GGNRA. Concealed firearms carried by people with licenses issued by California police chiefs or county sheriffs are allowed under some circumstances. However, the permit conditions for the Patriot Prayer event at Crissy Field prohibited all firearms, Coté stated.
So as things stand, it’s clear that officials and police have the right to curtail the open carry of firearms at public events and demonstrations. District of Columbia v Heller confirms that authority, however obliquely. But the law is fluid, Choper observes, and that protean quality applies in particular to the Second Amendment.
“I once read it 20 times for a case, and I still have no clear understanding of it,” says Choper, “and I know something about constitutional law. And I’m not alone: remember, the Court split 5-4 on Heller. And [Neil] Gorsuch [recently appointed to SCOTUS by Trump] believes the Second Amendment should be interpreted as a strong defense of the right to bear arms. So things could change. But even Gorsuch can’t ignore the context of a regulation enforced under exceptional circumstances, such as those that could lead to injury or the loss of life.”
Circumstances, in other words, that involve inflamed partisans facing each other in public venues.
Posted on May 21, 2019 - 1:12pm