Guns in Public Places

All states ban “electioneering” at polling places, but only six states and the District of Columbia prohibit open carry of firearms while standing in line to vote.

Think about that! A volunteer for a political party cannot campaign, display a sign, or even wear campaign clothing at or near a polling site, but he or she can pack a weapon. Now, I am not against laws prohibiting electioneering where people vote. The Supreme Court has ruled that campaign advocacy should be excluded at the polls to allow for “an island of calm in which voters can peacefully contemplate their choices.” But, how peaceful and contemplative a choice can a voter make when the bloke next to him or her is carrying an AR-15?

American elections, so far, have not been marred by gun violence, despite the heightened rhetoric surrounding current politics and the lies perpetrated by the losing side in this past November’s presidential election. I am assuming, for the sake of argument, that most gun owners act responsibly and would never bring a gun when they vote. But, two armed Trump supporters appeared near a Florida polling place during early voting last October, setting off worries about voter intimidation. In Michigan, last spring, private militias toted arms and threatened state lawmakers over mandated restrictions due to the pandemic. The perpetrators claimed to be exercising their democratic rights of free speech and gun ownership, but how free and safe did the legislators feel?

Michigan Secretary of State Jocelyn Benson addressed concerns about guns and voter intimidation by issuing an order banning firearms within 100 feet of polling places. Her order was promptly challenged in court, and a state appellate court struck down the ban for reasons unrelated to the Second Amendment. But, sooner or later, the constitutional issue of guns in public spaces is bound to come before the courts.

The demand by gun rights advocates to carry weapons in public spaces marks a dangerous turn in the debate over the Second Amendment. Those who believe the Constitution denies government the right to regulate guns cite the 2008 Supreme Court decision in District of Columbia v. Heller. But, that interpretation of Heller entails a misreading of the case, which established, rightly or wrongly, that the Second Amendment protects an individual’s right to keep and bear arms for certain private purposes. Justice Antonin Scalia’s majority opinion recognized the constitutionality of laws regulating guns in public places. “Nothing in our opinion,” Scalia wrote, “should be taken to cast doubt on… laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

There is a long history behind laws regulating guns in the public square. In the South, during Reconstruction, gun-toting Klansmen scared Black voters from the polls. Armed violence against potential voters did not cease after Reconstruction, nor is voter intimidation by armed mobs a distant memory. In 1982, the Republican National Committee signed a consent decree in which it agreed to stop sending squads of armed supporters to patrol Black and Latino voting places. The gun-wielding Republicans ostensibly were preventing voter fraud. In reality, they were a tool to intimidate and deter minority voters.

The Heller decision is likely to be revisited by the nation’s top court, whose balance was dramatically changed by former president Donald Trump. The new conservative majority likely will expand constitutional protections for gun rights outside the home. Where the Heller decision emphasized a gun owner’s right to protect his or her home, a new Supreme Court decision may condone carrying guns not only into Starbucks or Target, but also into schools and polling places.

Gun advocacy has changed in the nearly 15 years since Heller was decided. Gun owners are no longer merely wielding their guns against home invaders. Now, they are toting their weapons into the public square with the intention of dominating that space. Some advocates of guns in public spaces base their arguments on “insurrectionary theory,” the notion that the Second Amendment sanctions the defense of the Republic against enemies. The insurrectionists at the Capitol on January 6, 2021 subscribed to this theory, according to which the right to bear arms preserves the ability of civilians to protect against a tyrannical government.

A long tradition in Anglo-American common law recognizes society’s right to regulate weapons to protect public peace and order. Gun control laws preserve public order and the rights of others to assemble, speak, worship, and vote without intimidation. William Blackstone, the great 18th-century English codifier of the common law, wrote that “riding or going armed, with dangerous or unusual weapons, is a crime against the public peace by terrifying the good people of the land.”

Whatever justification undergirded the Heller decision on gun ownership and the right to defend private spaces, the new emphasis by Second Amendment zealots on a constitutional right to carry guns in public endangers the safety of the American public. As citizens, we must protect the right to vote without fear of intimidation by gun-toting thugs at polling places. Similarly, imagine the damage to academic freedom if students or their professors are permitted to bring weapons into schools. Try debating the Second Amendment in law school with a student who has a holstered piece on his or her hip.

Or, contemplate the level of discourse on the floor of the House if members are permitted to bring their weapons.

Posted March 16, 2021

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