In November of 1994, Daniel L. Schofield, S.J.D., Unit Chief of the Legal
Instruction at the FBI Academy, gave his reading of the way police officers
and government agencies should view the First Amendment to the Constitution
of the United States. In the following, we will look at the Second Amendment
in light of his advice on the First.
DLS - "The Supreme Court has indicated that in the context of protests, parades
and picketing in such public places as streets and parks, ...citizens must
tolerate insulting, and even outrageous, speech in order to provide adequate
breathing space to the freedoms protected by the First Amendment."
A&S - If applied to the Second Amendment, this would mean that bearing
arms in even an "outrageous" manner in public places must be tolerated by
citizens. Note that this would not tolerate "brandishing," any more than
the First Amendment tolerates yelling "Fire!" in a crowded restaurant.
DLS - "Three general first amendment principles guide departmental decision
making in controlling public protest. First, political speech in traditional
public forums, such as streets and parks, is afforded a very high level of
first amendment protection, and blanket prohibitions of such speech are generally
unconstitutional."
A&S - Applied to the Second Amendment, this principle would not allow
blanket prohibition of open possession of arms in public places.
DLS - "Second, reasonable time, place, and manner restrictions on such speech
are permissible if they are content-neutral, narrowly tailored to serve
substantial government interests, and leave ample ways for the speech to
occur.
A&S - Time, place and manner restrictions on the carrying of arms would
have to be neutral as to which arms were to be restricted, narrowly tailored
to serve substantial government interests and leave ample ways for all to
carry arms.
DLS - "Third, speech or expressive conduct can be restricted because of its
relationship to unlawful conduct, such as disorderly conduct or trespass."
A&S - The carry of arms can be declared illegal when it is in conjunction
with the breaking of other laws.
DLS - "The first amendment permits the government to impose a permit requirement
for those wishing to engage in expressive activity on public property, such
as streets, sidewalks, and parks. Any such permit scheme controlling the
time, place, and manner of speech must be narrowly tailored to serve a
significant governmental interest, and must leave open ample alternatives
for communication. The Supreme Court has held that any permit regulation
that allows arbitrary application is '...inherently inconsistent with a valid
time, place, and manner regulation because such discretion has the potential
for becoming a means of suppressing a particular point of view."
A&S - Thus, permits to carry would be allowed, so long as they could
not be arbitrarily denied and did not place unreasonable restrictions on
the time, place, or manner of carry.
DLS - "The Supreme Court has ruled unconstitutional permit schemes that vest
government decision-makers with uncontrolled discretion in deciding whether
to issue a particular permit."
A&S - This would make California's concealed carry permit scheme, as
practiced today, unconstitutional.
DLS - "The Supreme Court has interpreted the first amendment as creating
a '...profound national commitment to the principle that debate on public
issues should be uninhibited, robust and wide-open.' Law enforcement often
has the responsibility of balancing the legitimate need to maintain public
order with the important interest in protecting first amendment rights. Because
the legality of the various enforcement options discussed in this article
depends on a complex and fact-specific analysis, law enforcement decision
makers should obtain competent legal review of any proposed restriction on
expressive activity, In that regard, a particular group's past violent or
disruptive conduct should be carefully documented because it is relevant
to this analysis. Finally, it is recommended that officers receive legal
training on the basic principles of first amendment law before being assigned
the difficult task of controlling public protest."
A&S - There should be a "profound national commitment" to the principle
that the right to keep and bear arms should be uninhibited, robust and wide-open.
While it is necessary that the police maintain public order and guard against
criminal activity, they have, at the same time, an important interest in
protecting your exercise of your Second Amendment rights.
