Forthcoming Publication in UCLA Law Discourse
As our nation struggled with the implications of the hate-fueled events in Charlottesville, it became clear that the presence of a large number of heavily armed demonstrators at the “Unite the Right” rally terrorized peaceful protesters and made the job of law enforcement more difficult. Much of the commentary about Charlottesville made reference to the First and Second Amendments, suggesting that local officials and the police are straitjacketed when trying to deal with armed protesters. But a careful analysis of the relevant statutes and court decisions shows that state officials actually have broad leeway to pass and enforce sensible gun safety laws that prohibit, restrict, or punish the intimidating public display of firearms—without running afoul of the First or Second Amendments.
In fact, a number of states currently have such laws on the books, giving public officials a variety of tools to prohibit armed demonstrators from terrorizing the public and to punish those who do—laws that are entirely consistent with respecting demonstrators’ constitutional rights. These laws include limitations on openly displaying firearms in public, restrictions on carrying firearms at (or near) public demonstrations, prohibitions on armed marches or parades, prohibitions on unauthorized paramilitary training, requiring licensing and training for public carry, and prohibitions on armed intimidation. Other states would be well within federal constitutional limitations if they chose to enact and enforce similar laws. Rather than inhibit constitutional rights, these laws actually help protect them—ensuring that other citizens are able to exercise their First Amendment rights to speak freely and to peaceably assemble, without the chilling effects of heavily armed demonstrators.
We begin with an overview of the relevant Second Amendment landscape. Next, we discuss examples of several categories of laws already on the books that prohibit or allow local officials to prohibit the carrying of weapons at public demonstrations without infringing on Second Amendment rights. We then review limits on local authority imposed by firearms preemption laws, as well as options for less direct remedies, including permitting for public carry and enforcement of generally applicable laws criminalizing the use of firearms to threaten or intimidate. We conclude with an analysis of the relevant First Amendment case law, which shows that armed protestors’ invocations of “free speech” are misplaced and do not alter the constitutional calculus.
Background on the Second Amendment, Heller and Public Carry
The discussion begins with District of Columbia v. Heller, the 2008 decision in which the United States Supreme Court first recognized that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”554 U.S. 570, 635 (2008). Because the challenged ordinance in Heller dealt with the possession of firearms in the home, the Supreme Court did not answer the question of the extent to which restrictions on the public carrying of firearms are consistent with the Second Amendment. But Heller made clear that “[l]ike most rights, the right secured by the Second Amendment is not unlimited” and it is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”Id. at 626 (internal quotations and citations omitted). Writing for the 5-4 Court majority, Justice Scalia emphasized that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on…laws forbidding the carrying of firearms in sensitive places such as schools and government buildings[.]”Id. And Heller reaffirmed a prior Supreme Court decision from 1886, Presser v. Illinois, which “held that the right to keep and bear arms was not violated by a law that forbade ‘bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.’”Id. at 620 (citing Presser v. Illinois, 116 U.S. 252, 264-65 (1886).
There are two forms of public carry: open carry, where a firearm is visible to others, and concealed carry, where it is not. Since Heller, nearly every federal appellate court that has considered challenges to open and concealed carry regulations has recognized that state and local governments have broad leeway to regulate public carry. In 2013, the Third and Fourth Circuits upheld strict permitting schemes that applied to both open and concealed public carry.Drake v. Filko, 724 F.3d 426 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013). Both federal courts assumed, without deciding, that the Second Amendment covers public carrying to some extent, but concluded that state legislators have significant latitude to regulate public carry in the name of public safety.Drake, 724 F.3d at 431-40; Woollard, 712 F.3d at 876-78; see also Bonidy v. United States Postal Serv., 790 F.3d 1121, 1125 (10th Cir. 2015) (assuming that the Second Amendment applies outside the home “although with less force” and upholding federal ban on firearms at United States Postal Service parking lots). An earlier decision from the Fourth Circuit noted that “as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.”United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011). Similarly, the Second Circuit upheld a concealed carry permitting scheme, recognizing “a substantial role for state regulation of the carrying of firearms in public….”.Kachalsky v. Cty. of Westchester, 701 F.3d 81, 96 (2d Cir. 2012); see also Hightower v. City of Boston, 693 F.3d 61, 73 (1st Cir. 2012) (holding that “the government may regulate the carrying of concealed weapons outside of the home”). And the Ninth Circuit recently held that the Second Amendment does not apply to concealed public carry at all, agreeing with an earlier Tenth Circuit decision that reached the same result.Peruta v. Cty. of San Diego, 824 F.3d 919, 939 (9th Cir. 2016) (en banc), cert. denied sub. nom. Peruta v. California, 137 S. Ct. 1995 (2017); Peterson v. Martinez, 707 F. 3d 1197, 1201 (10th Cir. 2013). While the Seventh Circuit struck down Illinois’ ban on all public carry—open or concealed—the ruling noted that “Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in public.”Moore v. Madigan, 702 F.3d 933, 940 (7th Cir. 2012).
The sole outlier among the federal appellate courts is the District of Columbia Circuit. In a 2-1 decision, this court struck down the District’s “good-reason” requirement for concealed carrying, but only by sidestepping the required historical analysis and misinterpreting the District’s law as equivalent to a “total ban.”Wrenn v. District of Columbia, 2017 U.S. App. LEXIS 13348, at *17-21, 34-35 (D.C. Cir. July 25, 2017). And even this decision acknowledged that states can regulate public carry, noting, for example, that bans on carrying “in small pockets of the outside world…impose only lightly on most people’s right to ‘bear arms’ in public.”Id. at *25-26.
In sum, it is fair to say that the current Second Amendment judicial landscape leaves states with a wide variety of options to make sure that the open carrying of guns is not allowed to trump public safety concerns or trample the constitutional rights of others.
Legislative Options for Prohibiting Weapons at Demonstrations
The strongest legislative response to the intimidating use of firearms that we saw in Charlottesville is to prohibit the open carry of firearms entirely.See John Feinblatt,Op-Ed., Ban the Open Carry of Firearms, N.Y. Times, Aug. 17, 2017, available at https:// www.nytimes.com/2017/08/17/opinion/ open-carry-charlottesville.html.. As a matter of American history, many states and local governments across the country enacted and enforced prohibitions on public carrying in populated areas.See Brief of Amicus Curiae Everytown for Gun Safety in Support of Appellants and Reversal at 11-21, Grace v. District of Columbia, No. 16-7067 (D.C. Cir. July 13, 2016), available at https://everytownresearch.org/ documents/2016/07/grace-v-district- columbia.pdf. Currently, however, only three states prohibit the open carrying of both handguns and rifles in all or most locations.Cal. Penal Code § 25850; Fla. Stat. § 790.053(1); 720 Ill. Comp. Stat. 5/24- 1(a)(10). Each of these jurisdictions allows people to carry a concealed handgun in public, provided they meet certain criteria and obtain a permit to do so. California’s open carry regulations contain extensive exceptions, including an exception allowing municipal police chiefs in counties with less than 200,000 people to issue open carry licenses for handguns to county residents. Cal Penal Code § 26155(b)(2). Illinois allows concealed carry license holders to carry their firearms “partially concealed.” 430 Ill. Comp. Stat. 66/10(c) (1). In addition, Hawaii largely prohibits the open carry of long guns, but may grant a license to open carry handguns “where the urgency or the need has been sufficiently indicated[.]” Haw. Rev. Stat. Ann. §§ 134-5(a), 134-9. Tennessee prohibits the open carry of loaded long guns. Tenn. Code §§ 39-17-1307, 1308. New York prohibits the open carry of handguns, short-barreled rifles and assault rifles (but not other long guns). N.Y. Penal Law §§ 265.00(3), 265.03(3), 265.02(7), § 400.00. South Carolina prohibits the open carry of handguns only. S.C. Code Ann. §§ 16-23-20, 23-31-217. As explained above, the vast majority of relevant court decisions to date strongly support the argument that the Second Amendment poses no barrier to open-carry restrictions.Some states have constitutional “right to keep and bear arms” provisions that place greater constraints on state governments to regulate public carry; state officials should be sure to also review these provisions and any relevant state judicial precedent when considering public carry regulations. Consistent with this view, the Supreme Court of Florida recently concluded that Florida’s general prohibition on open carry does not violate the Second Amendment, holding that “the State has an important interest in regulating firearms as a matter of public safety[.]”Norman v. State, 215 So. 3d 18, 22 (Fla. 2017), petition for cert. pending. It should be noted that Norman reached that result in significant part because Florida broadly allows concealed public carry under a permissive permitting system. Id. at 28.
Another legislative option is to prohibit guns at demonstrations on public property.Such laws – neutral in their application to all groups – almost certainly would be upheld against any First Amendment challenge as well. See Geoffrey R. Stone, The Lessons of Charlottesville: Speech And Guns, HuffPost, Aug. 21, 2017, available at http://www.huffingtonpost.com/ entry/the-lessons-of-charlottesvillespeech- and-guns_us_599affa4e- 4b033e0fbdec648. Alabama, for example, broadly prohibits the possession of a firearm at or near a demonstration.Code of Ala. § 13A-11-59(b),(c). North Carolina and Maryland have similar laws,Md. Criminal Law Code Ann. §4- 208(b)(2); N.C. Gen. Stat. § 14-277.2 (exempting permit holders carrying concealed handguns at parades); see also A.R.S. § 13-3102(A)(10); 430 ILCS 66/65(a)(10). and Virginia is now reportedly considering enacting one.Alan Suderman, Virginia Gov. McAuliffe 'Most Likely' to Pursue Removal of Robert E. Lee Statue in Richmond, Associated Press, Aug. 21, 2017, available at http://www.nbcwashington. com/blogs/first-read-dmv/ Virginia-Gov-McAuliffe-Most-Likelyto- Pursue-Removal-of-Robert-E-Lee- Statue-in-Richmond-441306053.html. Other states could do the same, and follow the example of North Carolina, which recently enforced that state’s prohibition on guns at demonstrations by charging two protesters who brought guns to an anti-Klan rally.Cliff Bellamy, Protester charged with bringing handgun to anti-Klan rally, The Herald-Sun, Aug. 31, 2017, available at http://www.heraldsun.com/ news/local/counties/durham-county/ article170424712.html. Both men were also charged with the crime of going armed to the terror of people. Such prosecutions are likely to withstand any Second or First Amendment challenges, consistent with state court decisions that have “long deemed it reasonable to regulate…the carrying of deadly weapons [at a] public assembly, or in a manner calculated to inspire terror”State v. Oaks, 163 N.C. App. 719, 726 (N.C. Ct. App. 2004) (internal citations and quotations omitted). to avoid the “tragic consequences” that could result if demonstrators were permitted to legally arm themselves and “display their weapons for the purpose of imposing their will upon the people by terror.”State v. Dawson, 272 N.C. 535, 549 (N.C. 1968).
Many states prohibit groups of people from “parading,” “marching” or “associating” in public with firearms. Currently, 23 states have such laws,Ala.Code § 31-2-125; Fla.Stat.Ann. § 870.06; GA Code Ann. § 38-2- 277; Idaho Code § 46-802; 20 ILCS 1805/94; Kan.Stat.Ann. § 48-203; Ky.Rev.Stat.Ann. § 38.440; La. R.S. § 29:31, Me.Rev.Stat. tit. 37-B, § 342; Md. PUBLIC SAFETY Code Ann. § 13-214; ALM GL., ch. 33, §§ 129-31; Minn. Stat. § 624.61; Miss.Code Ann. § 33-1-31; Nev. Rev. Stat. § 203.080; N. H. Rev. Stat. Ann. § 111:15; NY CLS Mil § 240; N.C.Gen.Stat. § 127A-151; N.D.Cent.Code § 37-01-21; R.I. Gen. Laws § 30-12-7; Tex. Gov’t Code § 437.208, Wash.Rev.Code Ann. § 38.40.120; W. Va.Code § 15-1F-7; Wyo. Stat. § 19-8-104. These laws typically have limited exceptions. See also MCLS § 750.402 (permitting the governor, in times of “public tumult,” to direct societies whose membership is confined to members of a certain race to “not parade under arms.”). and other states could adopt them. For example, under Massachusetts law, “no body of men shall maintain an armory or associate together as a company or organization for drill or parade with firearms, or so drill or parade…”ALM GL ch. 33, § 129. The constitutionality of this law was upheld in Commonwealth v. Murphy, 166 Mass. 171, 172 (Mass. 1896). Rhode Island mandates that “[n]o body of persons,” unless expressly authorized, shall “parade in public with firearms in any city or town of this state.”R.I. Gen. Laws § 30-12-7. These are exactly the type of laws that Heller reaffirmed as permissible under Presser, which upheld a similar state law against First and Second Amendment challenge more than a century earlier.Heller, 554 U.S. at 620 (citing Presser v. Illinois, 116 U.S. 252, 264-65 (1886)). As one leading constitutional scholar recently explained, “[a]s a simple matter of common sense, a march or rally by people who are heavily armed is not an exercise of what the First Amendment calls ‘the right of the people peaceably to assemble.’”Michael C. Dorf, Constitutional Arithmetic Post-Charlottesville: Sometimes One Plus One Equals Zero (Aug. 21, 2017), available at http://www.dorfonlaw.org/2017/08/ constitutional-arithmetic-post.html.
All of these examples of smart, sensible gun regulations across the country make clear that if Virginia had a law of this kind on its books—for example, prohibiting open carry, prohibiting firearms at demonstrations, or prohibiting marching with firearms—white supremacists, Nazis, the KKK and other groups would have been prohibited from parading around with assault rifles at the ready. Any one of these laws would have protected public safety without infringing on the constitutional rights of the protesters.
Virginia – along with 23 other states – does have an anti-paramilitary law that make it illegal for individuals to assemble to train with firearms, or to train others on the use of firearms, for the purpose of furthering civil disorder.Va. Code Ann. § 18.2-433.2; see also A.C.A. § 5-71-302; Cal Pen Code § 11460; C.R.S. 18-9-120; Conn. Gen. Stat. § 53-206b; Fla. Stat. § 790.29; O.C.G.A. § 16-11-151 ; Idaho Code § 18-8103 ; 20 ILCS 1805/94a ; La. R.S. § 14:117.1; MCLS § 750.528a ; R.S. Mo. § 574.070 ; MCA § 45-8-109; R.S. Neb. § 28-1481 ; N.J. Stat. § 2C:39-14 ; N.M. Stat. Ann. § 30-20A-3; NY CLS Mil § 240(6); N.C. Gen. Stat. § 14- 288.20; 21 Okl. St. § 1320.10; ORS § 166.660; 18 Pa.C.S. § 5515; R.I. Gen. Laws § 11-55-2; S.C. Code Ann. § 16- 8-20; Tenn. Code Ann. § 39-17-314. Virginia’s law makes it a felony to teach or demonstrate the use of a firearm, when the individual knows or intends that such training will be used in furtherance of civil disorder.Va. Code Ann. § 18.2-433.2(1). Anyone who assembles with others for the purpose of training or practicing in the use of firearms with the intent of using such training in furtherance of civil disorder also commits a felony under Virginia law.Va. Code Ann. § 18.2-433.2(2). Relying on Presser, the City of Charlottesville recently sued various militias that descended on Charlottesville in August 2017 for violation of Virginia’s anti-paramilitary law, seeking to prevent them from engaging in such activities again in the state.City of Charlottesville, et al., v. Pennsylvania Light Foot Militia, et al., (Cir. Ct. Charlottesville), available at https://www.law.georgetown.edu/ academics/centers-institutes/constitutional- advocacy-protection/upload/ lawsuit-charlottesville.pdf.
Preemption Laws and the Limits of Local Authority
In addition to the federal Constitution, local officials also have to ensure that any regulation is consistent with state law. More than 40 states have firearm preemption laws that prohibit, to varying extent, local governments from adopting gun regulations.Everytown for Gun Safety, State Firearm Preemption Laws (Jul. 9, 2015), available at https://everytownresearch. org/fact-sheet-preemption- laws/. Connecticut, Hawaii, Massachusetts, New Jersey and New York do not have express preemption statutes pertaining to firearms ordinances. California and Nebraska have limited preemption laws that leave substantial room for municipal regulation. See Cal. Gov’t Code §§ 53071, 53071.5; Cal. Penal Code § 25605(b); Neb. Rev. Stat. § 18-1703 Such laws stand as unfortunate barriers to local control of volatile and dangerous situations like Charlottesville. In states that do not have such preemption laws, cities could pass ordinances prohibiting firearms at demonstrations. In states that do have firearms preemption laws, local authorities have limited options,Local officials should carefully review the scope of the preemption laws in their states in order to determine whether there is any room for regulation of open carry. but state legislators concerned about public safety might now be persuaded (by Mayors and others) to adopt exemptions to allow municipalities to regulate open carry at public demonstrations. A number of other states have already built such exemptions into their preemption laws. In Mississippi, for example, while local governments are generally prohibited from regulating firearms, they may still regulate the carrying of a firearm at a “political rally, parade or official political meeting[.]”Miss. Code Ann. §§ 45-9-51, 45-9- 53(1)(f); see also Md. CRIMINAL LAW Code Ann. § 4-209(b)(iii); MCA §45- 8-351(2)(a); Wyo. Stat. §§ 6-8-401; 15-1-103(a)(xviii). Numerous cities in Mississippi have such ordinances, including Jackson, Biloxi and Greenville.Jackson, Mississippi Code of Ordinances Sec. 86-12(a)(5); Biloxi, Mississippi Code of Ordinances Sec. 13-1-10(c)(iii); Greenville, Mississippi Code of Ordinances Sec. 8-2.5(b)(2).
Cities that are not preempted from regulating firearm possession at parades also can consider prohibiting carrying firearms or other dangerous weapons as a permit condition or as part of a security plan. Although cities and other localities cannot condition parade permits or participation on the identity of the organizers or the content of the participants’ speech, they can impose reasonable time, place and manner restrictions – and case law supports including a prohibition on bringing or carrying firearms or other dangerous weapons as an appropriate “manner” restriction.See Potts v. City of Lafayette, 121 F.3d 1106, 1109-1112 (7th Cir. 1997) (holding that a rally operations order that prohibited bringing in personal items which could be used as weapons “was a valid manner regulation”); Mitchell v. City of Morristown, 2012 U.S. Dist. LEXIS 92453 at *28 (E.D. Tenn. June 28, 2012) (holding that a First Amendment challenge to a security plan for a rally, which prohibited sticks and flag poles, was “frivolous” because such a policy is “objectively reasonable”); see also Grider v. Abramson, 180 F.3d 739, 748-50 (6th Cir. 1999) (holding that the use of a metal detector to keep weapons out of simultaneously-timed KKK and counter-protester rallies did not violate the First Amendment because it “constituted a necessary constraint narrowly fashioned to further a compelling governmental interest in public safety and order”); Geoffrey R. Stone, The Lessons Of Charlottesville: Speech And Guns, HuffPost, Aug. 21, 2017, available at http:// www.huffingtonpost.com/entry/ the-lessons-of-charlottesville-speechand- guns_us_599affa4e4b033e0fbdec648. Indeed, courts have cautioned that cities run the risk of being sued for negligence if they fail to adequately protect their citizens’ health and safety against foreseeable risks from firearms or other weapons at demonstrations in public areas.Potts, 121 F.3d at 1112.
Other Remedies: Requiring Permits and Training
States can also mandate that individuals obtain permits or licenses to openly carry weapons, and may condition the permits on training requirements. Currently, out of the 45 states that allow the open carry of loaded handguns in public, 14 require a permit or license to do so.Conn. Gen. Stat. §§ 29-35(a); 29- 28(b); Ga. Code Ann. §§ 16-11-126(h) (1); Haw. Rev. Stat. Ann. § 134-9; Ind. Code Ann. § 35-47-2-1(a); Iowa Code § 724.4(1), (4); Md. Criminal Law Code Ann. § 4-203(a), (b)(2); ALM GL ch. 140, §§ 129C, 131; ch. 269, § 10; Minn. Stat. § 624.714, subd. 1a; N.J. Stat. Ann. § 2C:39-5b; 21 Okl. St. §§ 1290.4,1290.5; R.I. Gen. Laws § 11-47-8(a); Tenn. Code Ann. §§ 39-17-1308(a)(2); 39-17-1351(b); Tex. Penal Code §§ 46.02(a), 46.15(b) (6); Utah Code Ann. §§ 76-10-505(1), 76-10-523(2). Each of these laws has exceptions to the permitting system for certain individuals or locations. And out of the 45 states that allow open carry of loaded, semiautomatic rifles, four require a permit or identification card.Iowa Code § 724.4(1),(4)(i); ALM GL ch. 140, §§ 129C, 131; ch. 269, § 10; Minn. Stat. § 624.7181(1b)(3); N.J. Stat. Ann. § 2C:39-5(c)(1). Requiring a permit for open carry would help ensure that the would-be carriers are the “responsible, law-abiding citizens” that Heller had in mind. States can also limit carry permits to state residents to prevent out-of-state groups from bringing weapons with them when they travel across state lines for a protest.
Enforcing Generally Applicable Criminal Laws
Beyond these options for directly regulating the carry of weapons at public demonstrations, every state in the union prohibits the use of a gun to threaten or intimidate a member of the public. 17 states have statutes that explicitly prohibit brandishing or displaying a firearm with the intent to cause fear or alarm.Ariz. Rev. Stat. § 13-2904(A)(6); Cal. Pen. Code § 417(a)(2); Colo. Rev. Stat. § 18-9-106(1)(f); 11 Del. C. § 602; Fla Stat § 790.10; Idaho Code § 18-3303; La. R.S. § 40:1382(A)(2); MCLS § 750.234e(1); Miss. Code Ann. § 97-37-19; R.S.Mo. § 571.030(4); Nev. Rev. Stat. 202.320(1); NY CLS Penal § 120.14(1); Tex. Penal Code 42.01(a)(8); Utah Code Ann. § 76-10-506; Va. Code Ann. § 18.2-282; Rev. Code Wash. § 9.41.270(1); W. Va. Code § 61-7-11. 10 additional states prohibit pointing a gun.Georgia Code Ann. § 16-11-102; Ind. Code Ann. § 35-47-4-3(b); Minn. Stat. § 609.66(a)(2); NC Gen. Stat. § 14-34; 21 Okl. St. § 1289.16; Ore. Rev. Stat. § 166.190; SC Code Ann. 16-23-410; 13 V.S.A 4011; Wyo. Stat. § 6-2- 504(b); Wis. Stat. 941.20(1)(c). The remaining 23 states criminalize using a firearm to cause fear either explicitly through their assault or “terroristic threatening” statutes, or through case law recognizing that these statutes criminalize such behavior.Ala. Code § 13A-6-23; Alaska Stat. § 11.41.220(a)(1)(A); Ark. Code Ann. § 5-13-301; Conn. Gen. Stat. § 53a-62; HI Rev. Stat. § 707-716(1)(e); Iowa Code § 708.1(2)(c); 720 ILCS 5/12- 2(c); KSA § 21-5412(a),(b)(1); Ky. Rev. Stat. § 508.050; 17-A Me. Rev. Stat. § 209; Md. Crim. Law Code Ann. § 3-202(a)(2); ALM GL ch. 265, §15B; 45-5-213(1)(b), MCA; Neb. Rev. Stat. § 28-310; N.H. Rev. Stat. Ann. § 631:4; NJ Stat § 2C:12-1; N.M. Stat. Ann. § 30-3-1; N.D. Cent. Code §12.1-17-05; Ohio Rev. Code Ann. 2903.21; 18 Pa. C.S. § 2701(a)(3); RI Gen Laws §§ 11-5-2(a), 11-5-3; SD Codified Laws § 22-18-1.1(5); Tenn. Code Ann. § 39- 13-102. Numerous states that have brandishing or pointing statutes also have assault statutes, which are not listed here.
In Virginia, for example, it is “unlawful for any person to point, hold or brandish any firearm…in such manner as to reasonably induce fear in the mind of another” or to “hold a firearm…in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured.”Va Code Ann. § 18.2-282. Virginia authorities would have been well within their discretion to have publicized this law and their intention to enforce it before the demonstrations in Charlottesville; and, with the assistance of cell phone and other footage of the events that transpired, they also would be more than justified in bringing charges against those who held, brandished, or pointed their firearms in a threatening manner (and not just against the one individual who actually fired his gun). States could also consider ratcheting up the penalties for such intimidating and illegal uses of firearms. For example, pointing, holding, or brandishing a gun in violation of the Virginia statute is only a misdemeanor, unless it occurs in a certain sensitive location.Id.
Courts routinely hold that the Second Amendment poses no barrier to enforcing these brandishing and menacing statutes. For example, a Texas appellate court held that the state’s disorderly-conduct law, which prohibits a person from intentionally or knowingly displaying a firearm in a public place in a manner calculated to alarm, did not violate the Second Amendment because “there is no constitutionally protected right to display a firearm in a public place in a manner that is calculated to alarm.”Ex parte Poe, 491 S.W.3d 348, 355 (Tex. App. Beaumont 2016) (italics in the original); compare with State v. Ross, 2017 Tex. App. LEXIS 7227, at *10-11 (Tex. App. San Antonio Aug. 2, 2017) (holding that a defendant charged with disorderly conduct in an open carry state is entitled to greater specificity in the charging instrument, because the term “alarm” in the disorderly statute is vague In Washington, a state appellate court rejected the constitutional argument of a man convicted of brandishing a weapon after a police officer noticed that he was carrying his AK-47 assault rifle “in a hostile assaultive type manner with the weapon ready….”State v. Spencer, 75 Wa. App. 118, 120-24 (Wash. Ct. App. 1994) (internal quotations omitted); sees also State v. Owens, 180 Wa. App. 846, 857 (Wash. Ct. App. 2014). The court held that “[p]eople have a strong interest in being able to use public areas without fearing for their lives. The [state] statute protects this interest by requiring people who carry weapons to do so in a manner that will not warrant alarm.”Spencer, 75 Wa. App. at 124. Similarly, a federal court in Illinois dismissed a Second Amendment challenge brought by a dental student who was expelled from school for brandishing a handgun in public, holding that “[w]hile [the plaintiff] has a Second Amendment right to bear arms, that right does not extend to reckless conduct.”Mutter v. Madigan, 17 F. Supp. 3d 752, 760 (N.D. Ill. 2014).
Open Carry, Free Speech and the Right to Peaceably Assemble
Because the Second Amendment has proven to be a poor cudgel for open carry activists, they have turned to the First Amendment. Just a few days before Charlottesville, a gun rights advocate argued that gun owners should use the First Amendment to protect open carry because “[t]he First Amendment has historically been much more difficult to limit than the Second….”Tyler Yzaguirre, Why gun owners should use the First Amendment to protect open carry, The Hill, Aug. 8, 2017, available at http:// thehill.com/blogs/pundits-blog/ civil-rights/345675-why-gun-ownersshould- use-the-first-amendment-toprotect- open. But while armed individuals frequently argue that they are exercising their First Amendment rights by openly carrying weapons, courts routinely dismiss such claims.See e.g., Chesney v. City of Jackson, 171 F. Supp. 3d 605, 616-19 (E.D. Mich. 2016); Baker v. Schwarb, 40 F. Supp. 3d 881, 895 (E.D. Mich. 2014); Northrup v. City of Toledo Police Division, 58 F. Supp. 3d 842, 848-49 (N.D. Ohio 2014), rev'd in part on other grounds, 785 F.3d 1128 (6th Cir. 2015); Burgess v. Wallingford, 2013 U.S. Dist. LEXIS 69755, at *27- 29 (D. Conn. May 15, 2013).
The Supreme Court has rejected “the view that an apparently limitless variety of conduct can be labeled as ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”United States v. O'Brien, 391 U.S. 367, 376 (1968). For example, in Virginia v. Black, the Supreme Court held that when cross-burning was intended to intimidate people, it was not entitled to First Amendment protection.538 U.S. 343, 347-48 (2003). In the wake of Charlottesville, affiliates of the American Civil Liberties Union, which has traditionally defended the First Amendment right of white supremacists to rally in public, acknowledged that “the 1st Amendment does not protect people who incite or engage in violence[.]”Matt Pearce, Tensions grow inside ACLU over defending free-speech rights for the far right, Los Angeles Times, Aug. 17, 2017, available at http://www.latimes.com/nation/la-naaclu- tensions-20170817-story.html.
The Supreme Court has set out a test for assessing whether conduct is entitled to First Amendment protection, and courts applying it have had little trouble finding that openly carrying, displaying or brandishing a firearm generally does not satisfy this test. Conduct is only protected by the First Amendment if there is “[a]n intent to convey a particularized message” and, under the surrounding circumstances, the likelihood is great “that the message would be understood by those who viewed it.”Spence v. Washington, 418 U.S. 405, 410-11 (1974). In Nordyke v. King, the Ninth Circuit noted that “[t]ypically a person possessing a gun has no intent to convey a particular message, nor is any particular message likely to be understood by those who view it.”319 F.3d 1185, 1190 (9th Cir. 2003). While the court also recognized that there were hypothetical circumstances in which “gun possession can be speech,”Id. we are not aware of a single published opinion that has ruled in favor of a plaintiff who brought a First Amendment claim alleging a right to carry a firearm. Instead, courts have recognized that the common and likely reaction of reasonable citizens who see someone openly carrying a firearm is alarm and concern.
For example, in 2014, a federal court in Michigan rejected the First Amendment claims of two men who had been briefly detained after concerned callers saw them walking down the street “carrying impressive looking rifles and handguns in full view.”Baker v. Schwarb, 40 F. Supp. 3d 881, 884 (E.D. Mich. 2014). The federal court had little difficulty dismissing their claims, holding that “Plaintiffs’ conduct cannot be considered symbolic speech for purposes of First Amendment protection.”Id. at 895. The court noted that “the relevant inquiry is whether those who viewed the conduct would likely understand the ‘message’ Plaintiffs were trying to convey, or that there was a message of any sort involved.”Id. (citing Spence, 418 U.S. at 410-11). It concluded that “[b]ased upon the numerous emergency calls the City of Sterling Heights received from concerned citizens, it seems clear that these random observers did not apprehend that Plaintiffs were engaged in any [expressive activity]. Instead of perceiving Plaintiffs as open carry activists demonstrating their First or Second Amendment rights, passer-byes [sic] were simply alarmed and concerned for their safety and that of their community.”Id.
Similarly, a court in Ohio dismissed a First Amendment claim by an armed individual because it was not clear that his alleged message would be understood by the viewer.Northrup v. City of Toledo Police Division, 58 F. Supp. 3d 842, 848 (N.D. Ohio 2014), rev'd in part on other grounds, 785 F.3d 1128 (6th Cir. 2015). The court noted that “[t]he fact that [the plaintiff] had to explain the message he intended to convey undermines the argument that observers would likely understand the message.”Id. In another case, a court threw out a similar First Amendment claim, holding that “[e]ven assuming arguendo that Plaintiff’s intent…was to carry his FNP-45 Tactical pistol with a TLR-2 rail mounted tactical light and laser sight in his leg holster to increase awareness on the topic of gun control,…the record nonetheless does not support a great likelihood that the message would be understood by those who viewed Plaintiff.”Deffert v. Moe, 111 F. Supp. 3d 797, 814 (W.D. Mich. 2015). In that case, the court noted that neither the police officer nor the 911 caller “apprehended Plaintiff’s intended message. The caller was merely alarmed.”Id.
In sum, the case law is clear that the open carry of firearms generally will not be protected as speech under the First Amendment. Indeed, far from erecting a hurdle to be overcome, in the context of open carry, the First Amendment puts a thumb on the scale in favor of laws that protect the right to speak freely and “peacably assemble,”U.S. Const. amen. I (emphasis added). without fear of being terrorized.
The gun lobby would like state and local officials to think that they have little choice but to allow the open carry of weapons in virtually every situation. But a close review of statutory and case law reveals that elected officials have wide latitude within the First and Second Amendments to prohibit and punish the open carry of weapons where such conduct is likely to intimidate, alarm, or terrify the public, or cause civil disorder. State and local officials committed to preventing another Charlottesville, or worse, could: (1) prohibit the open carry of firearms entirely; (2) prohibit the carrying of firearms at public demonstrations; (3) prohibit parading or marching with firearms; (4) expressly allow local jurisdictions to regulate open carry; (5) require a permit for open carry; or (6) in jurisdictions where no protective legislation can be achieved, announce in advance of any demonstration that the police will strictly enforce the applicable state law(s) that prohibit displaying a gun in a threatening or alarming manner, and then follow up by arresting and aggressively prosecuting those who violate such laws. All of these options provide opportunities for public officials to protect public safety, free speech, and the right to peaceably assemble, without running afoul of protestors’ First or Second Amendment rights.