The ACLU’s apparent shift of position angered some of the civil-libertarians who’d been defending it most forcefully early in the week. “Until now,” lawyer and blogger Scott Greenfield wrote, the ACLU has “never quite come out and announced that they will refuse to defend a constitutional right. This announcement says that when someone seeks to exercise two rights at the same time, the ACLU is outta there.”
I went to the post linked in the original article and didn't find an argument worth recounting here, or even rebutting. Apparently Greenfield thinks the 2nd Amendment trumps the 1st, and by extension, all others. I suppose you could make an argument for that, but I don't know what it would be (not a sound one, anyway), and he doesn't present one. So discard his argument (which he doesn't have, as I say) and focus on the issue of the ACLU and free speech. And the question is: when is there harm? As the article notes:
“Government may not censor speech because of its viewpoint,” says former ACLU director Nadine Strossen, “but it may censor speech because of its effects.”
Ah, but the question of "effects" is a thorny one for the courts. There was one standard, says this article, until 1969:
the government could prohibit speech that had a “bad tendency” to result in lawless action down the road — a standard that was used to censor Communists and antiwar protesters, among other groups.I don't sympathize with silencing either group, so there's a problem. But in 1969 the Supreme Court decided the KKK could hold a rally because:
“They were having a rally just for themselves. There was nobody else there, and nobody could see it,” so there wasn’t an imminent danger. (The KKK, in that case, was represented by the ACLU.)Change the context, change the outcome. That, at least, is the basic legal standard for deciding when speech is allowed, and when its affects cannot be allowed. Now, as the Vox article points out, the context has changed because of Heller and ALEC: now people can walk around with guns. And we're back to the conflict between the 1st Amendment and the 2nd. And to say we haven't developed the law on this, is to put it mildly. Here's the problem between one, and the other:
“I can certainly imagine if I were for example a counterdemonstrator, and I’m demonstrating against people who are there brandishing firearms, I think I would feel very frightened and I think that would be a reasonable fear,” says Strossen. “Even as I’m describing it, I think my imagination’s pretty good, because I’m feeling a little chill go down my body.”
But White is adamant that “carrying weapons isn’t in itself incitement,” and that someone can’t argue they face “reasonable fear” from a demonstrator simply carrying a weapon in a place where it’s legal to do so. “Combine open carry with a statement like ‘we are coming for you,’ and you've got something,” he says. “But you still need a threat.”
Now in Charlottesville no one was shot, but rather struck with a motor vehicle. Boston didn't want that to happen, so they put up concrete barricades to keep cars on the streets, where they belong, and pedestrians off the streets, where the marchers didn't belong. Yes, you can separate pedestrians from vehicles, and you can separate marchers from counter-protestors. But a .22 bullet can travel up to a mile (the one bit of ballistic knowledge I have), so how far apart can you separate the groups to satisfy both amendments? Must the government establish bullet-proof barriers? Is that possible, much less allowed under Constitutional law? Carrying a weapon becomes incitement becomes deadly illegal force in a heartbeat (it's the excuse police use today for shooting first and asking questions later). So how, reasonably, is open carry at a demonstration NOT incitement, especially since carrying a gun (legal, under applicable state law) turns to using that gun (illegal, under applicable state law) in a heartbeat. As I say, that's the defense the police use all the time; but will we grant that defense to protestors? to Nazis, skin-heads, white supremacists chanting "Blood and soil!"?
The fundamental problem is the one the Warren Court opened: when should the Court decide what is, and is not, Constitutional? Just the other day a discussion of the redistricting case in Texas, the one where the 5th Circuit (!) found Texas had racially gerrymandered some districts, pointed out that redrawing those two districts means redrawing every district in Texas. To mess with one is to mess with the one next to it, and next to that one, and so on to the borders. Nothing wrong with that in this case, but it's a metaphor for Constitutional decisions.
Since the Warren Court the Court has gotten a bit free about handing down "constitutional" rulings. The Rehnquist Court wasn't that big on them, but the Roberts Court enjoyed them and let Scalia off the leash, and Gorsuch wants to be Scalia on steroids (I don't think he has the legal chops for it, though). The problem with such rulings, as in the Heller case, is how they affect other constitutional provisions. The Warren Court didn't invade other areas of the Constitution with it's most famous decisions, but now, continuing to decide what the Constitution means TODAY, as opposed to, oh, yesterday, we seem to forced to redistrict the Constitution, so to speak. But Constitutional jurisprudence doesn't work that way; except we're going to force it to, on issue the public thinks are most fundamentally their constitutional rights.
Hard cases make bad law, the old adage says. This is not a reason for optimism.