When the first and second amendment collide

Great Debates
1

About, of course, the Charlottesville attacks.

Prior to the march the ACLU defended–with my approval–the right of the alt-right to march in their preferred location in Charlottesville.

But last night, a bunch of them showed up with torches. They surrounded, by the dozens if not hundreds, a few anti-racist protestors. Their march was declared unconstitutional.

Today, some of them showed up with weaponry and body armor and shields for their march. Others showed up with baseball bats. The police did nothing at first.

The first amendment protects the right “peaceably to assemble.” Which is where my question is: at what point is it appropriate to declare an assembly non-peaceful?

Is it when people show up literally with flaming torches? Is it when people show up en masse literally with body armor and weaponry? Or is it only after the first punch is thrown, the first car driven over an enemy?

Once someone is hit with a torch, how do constitutional protections apply? Obviously that assembly is no longer peaceable. Can the same people re-assemble five minutes later? Ten? An hour later? The next morning?

It seems very strange to me that police can shoot someone if they have reasonable fear for their safety, due to that person’s pulling a cell phone out of a pocket; but a large armed group can march with their weaponry, and suffer no repercussions until the violence has actually begun.

I’m interested both in answers referencing case law and in answers about what the criteria should be; it’s helpful, IMO, if people delineate what kind of answer they’re giving.

2

While the display of long guns at a rally is disconcerting, I don’t think It’s an entirely irrational response to escalating political violence. I wouldn’t fault anyone for conceal-carrying a sidearm at a rally (or anywhere really), or support legislative changes that wanted to outlaw the practice.

3

There can never be concrete answers to some of those questions.

Suppose a march becomes violent, and is dispersed. You ask, “Can the same people re-assemble five minutes later? Ten? An hour later? The next morning?” Too much depends on the situation. Obviously, the governor can’t forbid a new assembly forever…but five minutes seems too short a time for a hot situation to cool.

Same for the question of when an assembly ceases to be peaceful. The display of a weapon? The first punch? I was at a protest where there was spitting – I’ve been spat upon. Criminal assault, but would it have been enough for the police to disperse the entire protest? I kind of hope not. Bad as it was, it didn’t rise to the level of a riot.

Best we can ever do is play it by ear, avoiding excesses in either direction.

4

Loath as I am to defend the police who shoot people reaching for cell phones, those are not the same situations. In the first case, the police are in the process of questioning a suspect. And the cop has to demonstrate that he didn’t know the object was a cell phone, so the cops don’t have license to just shoot people with cell phones. In the latter case, those are just a bunch of people on the street. If the cop suspects that one of the protestors is violating the law, approaches the individual to question or arrest him and fears for his safety, then we’re in the same situation as the first instance.

I think that largely addresses your issue. If people are allowed by law to carry guns or shields or whatever, the cops can’t just go up to them and arrest them, much less shoot them. If they break the law, then that’s different. I suspect this may vary from state to state as to what types of arms are objects a person can carry to a rally and not be breaking the law.

5

When they become violent is the correct answer I’d say. Simply having weapons on your person doesn’t necessarily make the assembly non-peaceful. USING the weapons, on the other hand, does.

Even bigots and racist swine have the right to assemble in the US, even if, personally, I’d rather they didn’t. And even racist swine can bring something like a baseball bat or, if their state permits open carry, a gun. If they use it, however, that’s another matter entirely, and I’m perfectly ok with the police coming down on them at that time like a ton of bricks.

It’s sort of like what happened…driving a car is, of course, perfectly legal. Driving a car into protesters, however, isn’t. The asshole who did this should have the book thrown at them and should basically never see the light of day as a free man again. To paraphrase from Suicide Squad, put him in the deepest, dankest hole and throw away the hole.

Once you hit someone then the LAW applies. However, in reality, not sure what the police could do to immediately stop any and all violence. Once the violence started, from what I’ve read the police tried to disperse the crowd and the government tried to get folks to go home. Eventually that seemed to have worked. I believe several arrests were made.

I also read somewhere that a police helicopter involved in trying to control the crowd crashed with the pilot and another officer killed. :frowning:

Doesn’t seem all that strange to me. In the first case the officers made a mistake, thinking that a cell phone was a gun. They acted on their assumption that it was a gun in a situation where, I presume, they thought violence was happening. In the second case, until violence DOES happen they are presuming that it won’t. You have the right to keep and bear arms, as noted, and if the state permits, the right to open carry them. Carrying a concealed weapons, however, is highly regulated and highly limited, and in a situation where the police are confronting someone who legally has a concealed gun then the right thing for that person to do is to raise their hands and declare they are carrying and to give the proper identification.

Sorry, I don’t know the case law, certainly not for the state in question. I had, years ago, a carry conceal license so I’m basing some of my answer on my recollection and training from that, some on simple common sense and a rough knowledge of both the 1st and 2nd Amendments. If you want the legal take, hopefully some of the 'doper lawyers will weigh in.

6

At the moment there is imminent, clear, and present danger of violent conduct.

See Owens v. Commonwealth, 211 Va. 633 (1971).

7

I can definitely see an argument that weapons should not be allowed at a peaceful assembly. It’s a way to reduce violence before it starts, and guarantee that, if it does start, you won’t have a lot of people making it worse by reacting improperly.

I could even see a restriction to openly carried weapons only. This version would be more about not scaring people in an already tense situation. Plus, if your weapon is concealed, you can’t exactly use it right away. And then bringing it out could be the line that is crossed. It might be a reasonable compromise so that those who are worried they may need to protect themselves could do so.

What I am all for is protective measures. I think that makes sense in this climate. There are too many actors in these situations who can become violent. Someone on either side could get too upset and lose their sense of judgment. Spoilers can come in on either side. And even the police have been known to incite violence to try and stop protesters. Protection makes a whole lot of sense, and might cut down on the feeling that you need to have active protection.

As for when you can reassemble? When peace is restored. If everyone has calmed down after five minutes, why not?

8

Has the law ever dealt with whether carrying weaponry in a large assembly constitutes imminent, clear, and present danger? It seems to me straightforward to say that peaceable assembly must exclude open carrying of equipment of violence, and that the first amendment is in no way impacted by forbidding mass gatherings in which the tools of violence, whether torches or semiautomatics, are carried.

9

What actually happened though would seem to indicate that carrying weapons was not an imminent risk to public safety. Despite the violence, gunfire did not break out. Just old fashioned fisticuffs and someone using a car as a weapon.

10

Gunfire didn’t, but beating the hell out of each other with clubs did. Hitting people with those torches did.

11

The ideas that white nationalists represent are inherently violent ideas. It’s a bad idea to allow people with violent thoughts to parade around and simultaneously carry weaponry for purposes of “self defense”. If they really believe so strongly that they constitute a valid form of speech that stands on its own and that they’re simply and proposing non-violent evolution, then they ought not to be carrying weapons. Nazis don’t get to promote violence through their rhetoric and then claim self-defense when people pick up on that threat and decide to confront it.

The hypocrisy of the right wing is on full display. The same people who support the rights of the nationalists are almost certainly the same people who protested having a mosque built near ground zero. And I can’t imagine for a moment they’d be defending the rights of pro-sharia or pro-Islamist protestors marching through the streets of Minneapolis, Detroit, or New York.

12

This is what comes from thinking of laws as magic spells, and the Constitution as the Word of Gods.

There has never been any such thing as a law which doesn’t require interpretation in the event, for every possible circumstance, and never will be. As for the First and Second Amendments, they not only clash with each other, they aren’t even well coordinated within themselves.

Bottom line, there IS no way to draw a simple firm line, and say that a given behavior is or isn't protected by one or another of the Constitutions Bill of Rights.

Personally, what I would like to see, is that as soon as people show up to a protest bearing arms, the police or National Guard (as needed) would be called to respond in kind, and in degree. There should be as many armed and prepared police officers, as there are armed and prepared “protesters.”

Even that wouldn't change the fact that "protesting"  while armed, is inherently  a form of illegal coercion.  Ultimately, I think that marching or "protesting" or "peaceably assembling" while wearing body armor and carrying weapons, should be seen as identical to "shopping" and "bargaining with salespeople" while pointing a gun at them.
13

I haven’t seen the footage, but there are plenty of photos of folks wearing body armor, pads, helmets and carrying baseball bats. Sure, it can be a grey area but seems like it’s on the imminent risk side of public safety to me. It seems obvious to me, at least, that it is an overt threat of escalation to deadly violence.

For me, personally, openly carrying firearms to such an assembly seems at a minimum, intent to intimidate. I’ve seen open carry rally’s in the Seattle area, and it is clear as all get out the folks were there to show off, congratulate each other, and were not into holding an open and honest discussion with those that disagreed with their views.

14

True. Yet we don’t really think to ban that stuff as much. I guess a case can be made that we should, but usually it’s the guns people talk about.

15

Perhaps a distinction should be made between SOME individuals showing up armed and a large group that appears to be loaded for bear and looking for trouble.

16

in effect it is hard to see how hiding behind pretended innocenses changes the obvious… it is always strange to see these American discussions that ignore any lessons from elsewhere - for anyone looking from the European context and the history of the disturbing similar party militias of the 1920-2930s the obviousness of the intention is clear.

Whether it is the radical left groups calling themselves the “antifa” (can there be a stupider sounding phrase self-applied???) and are the rebranded violent anarchists it seems or it is these action-movie dreaming right militias, these are violent intimdation moves.

17

Maybe. Where do you think Friday and Saturday fall on the spectrum?

18

A bunch of people with torches seems like a threat. A few people with guns in a large group probably not. If most of them were armed, that would be different, although you’d want to be careful about provoking a gun battle.

19

I remember being in San Francisco at the Democratic National Convention and protesting in the free speech area. Hardcore bands like the Dicks and Dead Kennedy’s played. There were reports of arrests, and at the end of the day and large contingent of the biggest gathering of punk rocks I’ve ever seen or been part of, went to the city jail to protest.

There were no long guns, no one had body armor/pads/helmets, hands were empty (instead of holding baseball bats). IIRC, there was about a 20 minute standoff at the intersection between burly plainclothes cops, uniformed riot gear wearing police, and eventually mounted police versus a bunch of punk rocks across the street. When the mounted police lined up, there was about a 10 second warning “This is an illegal demonstration” and then charge by the mounted police.

WTF took the police so long to get their shit together?

20

To be 100% clear, neither I nor the second amendment is drawing a distinction here between different sorts of arms, so let’s not veer off into a conversation about whether firearms should be banned.

My question is, is there a reasonable claim that:

  1. You have the right to peaceably assemble;
  2. You have the right to bear arms;
  3. You do not have the right to assemble en masse bearing arms?