Law & the Courts

After Charlottesville, the First and Second Amendments Are Under Fire

Protestors in a New York City march against gun violence (Reuters: Andrew Kelly)
The ACLU retreats from defending the rights of protesters who legally carry guns.

A very strange thing has happened since last weekend’s dreadful violence in Charlottesville. White supremacists used virtually every form of weapon except guns, yet somehow the Second Amendment is now under fire. Even worse, those who lawfully exercise the right to keep and bear arms now have fewer defenders when they also choose to speak.

It started with Virginia governor Terry McAuliffe. In remarks that were oddly enough edited out of a New York Times article, McAuliffe claimed that “80 percent of the people here had semiautomatic weapons.” He further asserted that militia members “had better equipment than our state police.” He also said that white supremacists had weapons “stashed around the city.”

The Virginia state police disputed the governor’s claims, stating that they’d specifically looked for weapons stashes and “no weapons were located.” Further, they assured the public that they were not outgunned by militias. A spokesperson said the police “were equipped with more-than-adequate specialized tactical and protective gear for the purpose of fulfilling their duties” to protect the people present at the protests.

No matter. Claims that gun-toting militia members had somehow “chilled” free speech rocketed around the Web. Yet who, exactly, was deterred from speaking last weekend? Not only were people “speaking,” they were shrieking, chanting, yelling, and arguing. Few were deterred even from brawling.

Then, yesterday, a more significant shoe dropped. The Wall Street Journal reported that the American Civil Liberties Union “will no longer defend hate groups seeking to march with firearms.” In other words, the group’s anti-gun stance is now directly influencing its First Amendment advocacy. It’s executive director, Anthony Romero, told the Journal that the decision “was in keeping with a 2015 policy adopted by the ACLU’s national board in support of ‘reasonable’ firearm regulation.”

For all its flaws and inconsistencies in other areas, the ACLU had been one of the last well-resourced national legal organizations that were truly non-partisan in defending First Amendment freedoms such as the right to march and speak in Charlottesville. Indeed, a local ACLU chapter had defended the alt-right’s liberties at that very protest. But now the ACLU’s message was clear: lawfully exercise Second Amendment rights, and we’ll turn our backs on your First Amendment freedoms.

The law already prohibits true threats, and there are an array of legal restrictions on the place and manner of “bearing” arms depending on the jurisdiction and location. Under existing precedent, groups that engage in threats or violate local firearms laws face severe legal consequences. The ACLU’s position, however, is that it will not represent a category of organizations that are completely compliant with the applicable laws.

The ACLU is a private organization, and it has complete discretion to choose its clients, but its action reveals the extent to which arguments about civil liberties are becoming dangerously partisan and short-sighted. The ACLU has enjoyed an enormous surge in membership and donations since it positioned itself as the law firm of the #Resistance, but a number of these new members are completely ignorant of the organization’s traditional First Amendment work and were furious when they found out the ACLU’s role in protecting the alt-right’s constitutional rights.

Thus, yet another negative result of last weekend’s deadly violence is that both the First and Second Amendments are under increasing cultural pressure. Rather than focus on the actual violence that caused so much pain and harm last weekend, activists are renewing calls for so-called hate-speech restrictions, and they’re increasing demands for restrictions on the right to bear arms. The ACLU is a key pressure point. Rights that don’t enjoy a robust defense are not rights at all. The Constitution is not a self-executing document.

At this point, the gun-rights debate is almost beyond the reach of facts. A weekend that was notable mainly for an act of vehicular terror has become a pretext for discouraging the exercise of Second Amendment rights. Sadly, our First Amendment debates are racing in the same direction. All too many Americans seek the power to suppress and shame more than they cultivate the ability to rebut and persuade. Alt-right drivel isn’t a threat to the constitutional experiment. A culture that values censorship over debate, however, is.

The alt-right hates American traditions and American liberties. Why grant it the slightest influence over American life?

And lest we think these categories are “easy,” and that it’s possible to suppress the rights of the worst people without touching the civil liberties of the mainstream, consider this. I used to work at an organization that the Southern Poverty Law Center considers a “hate group,” the Alliance Defending Freedom. It’s deemed a “hate group” in large part because it holds to an orthodox Christian view of sexual morality and gender identity. I hold those same views. I’m also a concealed-carry permit holder. My wife and I carry a weapon virtually all the time because of threats, ironically enough, from the alt-right. Should the ACLU defend my right to speak?

Sadly, there are many Americans who would say no. They hate my viewpoint too much. They hate guns too much. The allure of power and control is too strong. They see little value in dissent, especially on the most sensitive cultural issues, and they utterly reject the concept of an armed citizenry. Yet even terrible crimes shouldn’t cause us to retreat from our commitments to liberty.

Our constitutional republic and our culture of free speech have endured and prospered in the worst of attacks, events far worse than even the dreadful crimes in Charlottesville. It suffers, however, in the face of cultural retreat and surrender. The alt-right is too pathetic to warrant the slightest compromise. Yet that’s exactly what the ACLU did, and short-sighted Americans applauded.

The alt-right hates American traditions and American liberties. Why grant it the slightest influence over American life?


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— David French is a senior writer for National Review, a senior fellow at the National Review Institute, and an attorney.


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