Jeff Kowalsky, “People Take Park in a Protest for ‘Michiganders Against Excessive Quarantine,’ at the Michigan State Capitol in Lansing, Michigan on April 15, 2020,” 2020 (Getty Images), https://www.gettyimages.ae/detail/news-photo/people-take-part-in-a-protest-for-michiganders-against-news-photo/1210050182?adppopup=true.
For three consecutive weeks, small numbers of armed protesters, openly carrying semi-automatic rifles, have attended rallies in and around the Michigan State Capitol organized to protest the governor’s extension of the state stay-at-home order. At similar rallies at the Kentucky, Ohio, Pennsylvania, and Wisconsin state houses and in the streets of Raleigh, Dallas, Pittsburgh, Denver, Salt Lake City, and Crown Point, gun rights extremists have used state lockdown protests, and more recently protests spurred by the death of George Floyd, as opportunities to openly display military-style firearms to incite fear, suppress civil discourse, and threaten public safety.Abigail Censky, “Heavily Armed Protesters Gather Again at Michigan Capitol to Decry Stay-At-Home Order,” NPR, May 14, 2020, https://www.npr.org/2020/05/14/855918852/heavily-armed-protesters-gather-again-at-michigans-capitol-denouncing-home-order; see also Daniel Villarreal, “Michigan Closes Down Capitol in Face of Death Threats from Armed Protesters Against Gov. Whitmer,” Newsweek, May 14, 2020, https://www.newsweek.com/michigan-closes-down-capitol-face-death-threats-armed-protesters-against-gov-whitmer-1504241; Robert J. Spitzer, “Why Are People Bringing Guns to Anti-Quarantine Protests? To Be Intimidating,” Washington Post, April 27, 2020, https://www.washingtonpost.com/outlook/2020/04/27/why-are-people-bringing-guns-anti-quarantine-protests-be-intimidating/; Associated Press, “National Guard Called Out in Utah After Violence,” Associated Press, May 30, 2020, https://www.8newsnow.com/news/national-guard-called-out-in-utah-after-violence/; Erik Maulbetsch, “Denver Police Seized Assault Rifles from Anti-Govt Gun Activists at Friday Night Protest,” Colorado Pols, May 31, 2020, https://www.coloradopols.com/diary/140698/denver-police-seized-assault-rifles-from-anti-govt-gun-activists-at-friday-night-protest; Lauren Strapagiel, “Armed White Men Showed Up To A Black Lives Matter Protest In Indiana,” Buzzfeed News, June 4, 2020, https://www.buzzfeednews.com/article/laurenstrapagiel/crown-point-indiana-black-lives-matter-guns.
Directly above me, men with rifles yelling at us. Some of my colleagues who own bullet proof vests are wearing them. I have never appreciated our Sergeants-at-Arms more than today. #mileg pic.twitter.com/voOZpPYWOs
— Senator Dayna Polehanki (@SenPolehanki) April 30, 2020
Senator Dayna Polehanki, Twitter post, April 30, 2020, 12:38 p.m., https://twitter.com/SenPolehanki/status/1255899318210314241.
In 35 states, civilians may openly carry loaded long guns around state capitols.
The violent rhetoric accompanying the open carry has been steadily increasing. Protesters in KentuckySarah Ladd, “Beshear Hanged in Effigy as Second Amendment Supporters Rally at Capitol before Memorial Day,” Louisville Courier Journal, May 24, 2020, https://www.courier-journal.com/story/news/politics/2020/05/24/second-amendment-supporters-protest-covid-19-restrictions-capitol/5250571002/. and Michigan have displayed effigies of the states’ governors hanging in nooses and it was reported that members of private Facebook groups who were planning the Michigan protests were also making threats of physical violence.Katie Shepherd and Moriah Balingit, “A Noose, an Ax and Trump-Inspired Insults: Anti-lockdown Protesters Ratchet up Violent Rhetoric,” Washington Post, May 15, 2020, https://www.washingtonpost.com/nation/2020/05/15/noose-fight-coronavirus-protest/. Armed protesters descended on the home of Ohio’s state health director.Griff Witte, “Ohio’s Amy Acton Inspires Admiration, and a Backlash, with Tough Coronavirus Response,” Washington Post, May 18, 2020, https://www.washingtonpost.com/national/a-white-coated-hero-or-a-medical-dictator-ohios-amy-acton-inspires-admiration-and-a-backlash-with-tough-coronavirus-response/2020/05/17/fa00cd1c-96d4-11ea-82b4-c8db161ff6e5_story.html. One organizer in North Carolina, who attended demonstrations while armed, filmed a video saying he was “willing to kill people.”Steve Wiseman, “Husband of ReOpenNC Leader Says He’s ‘Willing to Kill People’ to Fight Government Control,” News & Observer (Raleigh, NC), May 24, 2020, https://www.newsobserver.com/news/local/article242971806.html. And in Colorado, a major healthcare provider was threatened with “severe consequences” if it didn’t end its quarantine orderDavid Choi, “A Major Healthcare Provider Received a Threatening Email to End the Lockdown 'or Face Severe Consequences.' Police Said It Wasn't a Crime,” Business Insider, May 6, 2020, https://www.businessinsider.com/colorado-quarantine-civil-war-threat-email-2020-5. and a man who used social media to encourage people to bring assault rifles to a protest was arrested for possession of several illegal pipe bombs.Clayton Sandell, “Colorado Man Planning Armed Protest against State’s Coronavirus Restrictions Arrested for Pipe Bombs,” ABC News, May 4, 2020, https://abcnews.go.com/US/colorado-man-planning-armed-protest-states-coronavirus-restrictions/story?id=70491370; United States Attorney’s Office, District of Colorado, “Northern Colorado Man Arrested for Possessing Pipe Bombs,” news release, May 3, 2020, https://www.justice.gov/usao-co/pr/northern-colorado-man-arrested-possessing-pipe-bombs.
Gun rights extremists are able to mount these intimidation campaigns because in most states it is legal to open carry loaded firearms at or around state capitol buildings or demonstrations. This is largely due to the absence of state laws prohibiting the open carry of firearms in public, commonly known as the “open carry loophole.” Few state legislatures have addressed the legality of the “open carry loophole” because responsible gun owners have not traditionally openly carried firearms in public.
In 41 states, civilians can open carry loaded, semi-automatic rifles without a permit.
Thus, while a majority of states require a permit to carry a concealed handgun in public, in 41 states, it is legal for civilians to openly carry loaded, semi-automatic rifles in public without a permit.Five states (CA, FL, HI, IL, and TN) and the District of Columbia prohibit the open carry of loaded long guns. Four states (IA (within the limits of any city), MA, MN and NJ) require permits to openly carry long guns. Pennsylvania requires a carry permit in cities of “the first class,” defined as a city with a population of one million or more (i.e., Philadelphia), only and is included among states that allow open carry of long guns without a permit. In two-thirds of the 41 states, a person openly carrying a long gun may never have passed a background check since no permit is required for open carry and no background check is required on unlicensed sales of long guns.These states are: AL, AK, AR, AZ, GA, ID, IN, KS, KY, LA, ME, MI, MS, MO, MT, ND, NE, NH, OH, OK, SC, SD, TX, UT, WI, WV, and WY. In 35 states, civilians may openly carry loaded long guns in and/or around state capitol buildings.In addition to the five states (and DC) that prohibit the open carry of loaded long guns, ten states (AR, CO, IN, MO, NC, OK, OR, TX, WA, and WV) prohibit the open carry of loaded long guns on capitol grounds.
Open carry is a dangerous policy opposed by the public. A visible gun has been found to make people more aggressive; therefore open carry makes it more likely that disagreements will turn into violent conflicts.Jennifer Klinesmith, Tim Kasser, and Francis T. McAndrew, “Guns, Testosterone, and Aggression: An Experimental Test of a Mediational Hypothesis,” Psychological Science 17, no. 7 (2006) http://faculty.knox.edu/fmcandre/guns-testo-aggress.pdf. Polling in Texas, where open carry is lawful, demonstrates that a significant portion of citizens in that state similarly oppose the open carry of firearms.Ross Ramsey, “UT/TT Poll: Voters Less Open to Open Carry,” Dallas Tribune, February 24, 2015, https://www.texastribune.org/2015/02/24/uttt-poll-voters-less-open-open-carry// The open carry of loaded firearms during any demonstration increases the likelihood that such an event will escalate into a dangerous or deadly situation.
Nevertheless, a small number of gun rights extremists, some with ties to militia and extreme anti-government groups,Bryan Armen Graham, “‘Swastikas and Nooses’: Governor Slams ‘Racism’ of Michigan Lockdown Protest,” The Guardian, May 3, 2020, https://www.theguardian.com/us-news/2020/may/03/michigan-gretchen-whitmer-lockdown-protest-racism); Sara Burnett, “Michigan Militia Puts Armed Protest in the Spotlight,” Associated Press, May 2, 2020, https://apnews.com/c04cc1df0c958053489bd24bb7fce93f. are promoting armed attendance at demonstrations across the country. The National Rifle Association (NRA) supports unfettered open carryMichael Muskal, “NRA Apologizes for Calling Texas Open-Carry Gun Demonstrators ‘Weird’,” Los Angeles Times, June 4, 2014, https://www.latimes.com/nation/nationnow/la-na-nn-nra-apologize-texas-long-gun-open-carry-20140604-story.html. and has failed to repudiate the anti-lockdown protests and the intimidation tactics being deployed. In fact, multiple NRA board members are publicly supporting and promoting protests,On April 15, 2020, Ted Nugent wrote on Facebook that Michigan protesters “are my real Michiganiac shitkickers!” (https://www.facebook.com/tednugent/posts/10157391883687297?__tn__=-R); On April 22, 2020, Willes Lee tweeted, “Lying media and corrupt Dems want America closed. First they bitch that Trump isn’t a king to order states to open .... then they whine that he needs to order Kemp to keep GA closed. #corruptDems #talkingpoints #openAmerica #MAGA.” (https://twitter.com/WillesLee/status/1253140476196159495); On May 18, Lee also shared a COVID-related conspiracy theory about Bill Gates: “This guy is sooo dirty. https://www.zerohedge.com/markets/italian-politician-demands-bill-gates-arrest-crimes-against-humanity” (https://twitter.com/WillesLee/status/1262547230440828928); Marion Hamer called COVID-19 statistics in Florida “deliberately deceptive” (“Florida NRA leader Questions Local Coronavirus Stats, Suggests They're 'Deliberately Deceptive.’” Tallahassee Democrat, May 26, 2020, https://www.tallahassee.com/story/news/2020/05/26/top-nra-official-florida-questions-local-coronavirus-statistics/5256829002/); Anthony Colandro knowingly violated New Jersey’s stay-at-home order to attend an anti-quarantine protest, and said, "This plandemic is a bunch of bullshit now. Now they want microchipping and cellphone apps and they want to quarantine us in camps and stuff. What's coming next?" (Sydney Hargis, “NRA Board Member Encouraged People to Attend Protest against Social Distancing: ‘They Can’t Arrest All of Us,’” Media Matters for America, April 30, 2020, https://www.mediamatters.org/coronavirus-covid-19/nra-board-member-encouraged-people-attend-protest-against-social-distancing); see also Matt Cohen, “How the NRA Is Using Coronavirus Fears to Drive Up Gun Sales,” Mother Jones, May 8, 2020, https://www.motherjones.com/politics/2020/05/how-the-nra-is-using-coronavirus-fears-to-drive-up-gun-sales/. opting to align themselves with fringe groups in an attempt to help the struggling organizationTim Mak, “Secret Recording Reveals NRA's Legal Troubles Have Cost The Organization $100 Million,” NPR, April 21, 2020, https://www.npr.org/2020/04/21/839999178/secret-recording-reveals-nras-legal-troubles-have-cost-the-organization-100-mill; see also nrawatch.org. maintain relevance with far-right extremists. But the dangers inherent to the open carry of firearms in demonstrations are very real, and a new Department of Homeland Security (DHS) memo, reportedly the fifth DHS memo in the last two months warning law enforcement agencies about the recent mobilization of domestic terrorists, warns that recent protests spurred by the death of George Floyd may provide a new opportunity for violent, armed incitement by “militia extremists” who oppose gun ownership laws and will exploit protests over police brutality to incite a civil war.Betsy Woodruff Swan and Natasha Bertrand, “‘Domestic Terrorist Actors’ Could Exploit Floyd Protests, DHS Memo Warns,” Politico, June 1, 2020, https://www.politico.com/news/2020/06/01/dhs-domestic-terrorists-protest-294342. Armed extremists have already shown up at recent protests in Denver and Salt Lake City.Associated Press, “National Guard Called Out in Utah After Violence,” Associated Press, May 30, 2020, https://www.8newsnow.com/news/national-guard-called-out-in-utah-after-violence/; Erik Maulbetsch, “Denver Police Seized Assault Rifles from Anti-Govt Gun Activists at Friday Night Protest,” Colorado Pols, May 31, 2020, https://www.coloradopols.com/diary/140698/denver-police-seized-assault-rifles-from-anti-govt-gun-activists-at-friday-night-protest.
Regulating open carry does not run afoul of the 1st or 2nd Amendments.
The open carry of firearms, violent rhetoric, and rising tensions are a dangerous combination. State and local leaders should close the open carry loophole and regulate open carry, particularly at demonstrations held on capitol grounds. The common sense actions below would protect public safety, help keep demonstrations peaceful, and do not run afoul of the First or Second Amendments.Eric Tirschwell and Alla Lefkowitz, “Prohibiting Guns at Public Demonstrations: Debunking First and Second Amendment Myths After Charlottesville,” UCLA Law Review, April 5, 2018, https://www.uclalawreview.org/prohibiting-guns-at-public-demonstrations.
Legislative Options for Addressing the “Open Carry Loophole”In the absence of legislative actions, states and localities can also consider enforcing generally applicable criminal law—all 50 states criminalize armed intimidation—and increasing penalties for intimidation and the illegal use of firearms. Tirschwell and Lefkowitz, “Prohibiting Guns.”
- Prohibit the open carry of firearms in public.
- Prohibit firearms at demonstrations held on public property.
- Ensure local officials have the authority to regulate firearms at demonstrations.