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.
