In anticipation of the possibility that racist groups will commit similarly violent acts this weekend, Virginia Gov. Ralph Northam (D) and the city of Charlottesville itself have both declared states of emergency. Charlottesville officials in particular have “announced a security perimeter downtown that will include blocked streets, limited parking and pedestrian checkpoints,” beginning at 6 pm Friday. The city has also provided a long list of items that will be banned from this secure area, as they could potentially be used as weapons.
Interim City Manager Mike Murphy has prohibited the following items within the downtown security area: BB guns, pellet guns, air rifles or pistols, paintball guns, nunchucks, Tasers or other stun guns, heavy-gauge metal chains, lengths of lumber or wood, poles, bricks, rocks, metal beverage or food cans or containers, glass bottles, axes, axe handles, hatchets, ice picks, acidic or caustic materials, hazardous or flammable or combustible liquids, skateboards, swords, knives, daggers, razor blades or other sharp items, metal pipes, pepper or bear spray or Mace, aerosol sprays, catapults, wrist rockets, bats, sticks, clubs, drones, explosives, fireworks, open fire or open flames and any other item considered to be an “implement of riot.”
Yet, as Charlottesville’s Daily Progress reports, this list does not include one very notable weapon. Nunchucks, swords, paintball guns, and “lengths of lumber” may be banned, but real guns are not. “[Handguns] are not on that list,” Charlottesville Police Chief RaShall Brackney told the Daily Progress. “We have to honor your Second Amendment rights.”
Local police are, indeed, bound by the Second Amendment. But as it happens, there is no Second Amendment right permitting a violent white supremacist to bring a gun to the site of a deadly rally on that rally’s anniversary during a lawfully designated state of emergency. It is possible that Virginia state law restricts Charlottesville’s ability to keep guns away from the secured area, but that’s the fault of the state legislature — and it is also something the state legislature could have fixed. The Second Amendment does not say what Brackney claims that it says.
There is surprisingly little case law interpreting the Second Amendment. The Court held, for the very first time, that this amendment protects an individual right to bear arms in 2008. Yet Justice Antonin Scalia’s opinion in District of Columbia v. Heller, the 2008 decision, also makes clear that “the right secured by the Second Amendment is not unlimited” and it also states that “nothing in our opinion should be taken to cast doubt on…laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”
The Supreme Court has not really fleshed out what constitutes a “sensitive place,” but the two examples Scalia gave — schools and government buildings — suggest that the Court is aware that some areas present heightened safety concerns or call for additional security. And if it is lawful for a state to apply such security measures, on a permanent basis in every public school or government building in the state, it’s hardly a stretch to say that Charlottesville may temporarily ban guns from the site of a deadly rally on a day when participants in that rally are expected to return to the scene of the crime.
Though the Supreme Court hasn’t said much about the Second Amendment since Heller, the United States Court of Appeals for the Fourth Circuit, which oversees Virginia, did put some meat on Heller‘s bones in United States v. Masciandaro, which upheld the federal ban on loaded firearms in a public park.
Among other things, Masciandaro explained that the Second Amendment is strongest when it is invoked to support “self-defense of a law-abiding citizen in his home.” Outside the home — such as on the streets of Charlottesville — the Second Amendment is weaker, and gun restrictions will be upheld if they are “reasonably adapted to a substantial governmental interest.”
Note as well that the Second Amendment is strongest when someone wants to carry a gun for “self-defense” reasons. The premise of cases like Heller is very similar to NRA executive vice president Wayne LaPierre claim that “the only thing that stops a bad guy with a gun is a good guy with a gun” — that is, the Second Amendment exists, at least according to Heller, so that people who are threatened by a “bad guy with a gun” can fall back on their own weapon.
But this rationale is weak when one considers a situation in which the government has set up police checkpoints, created a secure area, and filled it with law enforcement officers. With such a substantial police presence, there is far less need for ordinary citizens to rely on their own gun if a vigilante somehow sneaks a firearm into the secure area.
So the thrust of the Second Amendment is at its lowest ebb during the unusual circumstances that will exist in Charlottesville this weekend. The site of the deadly “Unite the Right” rally is almost certainly a “sensitive place” as Heller understood that term. That site is also a public space, and the need for individual self-defense is obviated by a substantial police presence.
There is no good reason why Charlottesville shouldn’t be able to ban guns from this site during this particular weekend.