How White Supremacists Exploit the Open Carry Loophole in their Campaign of Intimidation

Bottom Line: On August 12 in Charlottesville, VA, a group of white supremacists protesting the removal of a statue of Robert E. Lee marched through the city openly carrying military-style rifles. This behavior highlights a loophole in the laws of most states that allows people to openly carry guns in public without a permit, training, or so much as a background check. Research shows that open carry is a dangerous policy. It is opposed by law enforcement but long embraced by white supremacists and, more recently, the gun lobby.

Background: In advance of a planned “Unite the Right” White Nationalist rally in Charlottesville, VA on August 12, a self-styled “militia group” descended on the city openly carrying handguns and military-style rifles. Later that day, one person was killed and 19 others injured when a white supremacist rammed a car into a crowd of counter-protesters.

A loophole in most states’ gun laws allows civilians to openly carry guns in public with no permit and no safety training.

  • In the vast majority of states, a permit is required to carry a concealed handgun in public. Though permit standards in these states vary widely, strong permits ensure that certain core public safety standards are maintained, such as requiring that a person has a background check and receives firearm safety training before carrying a concealed gun in public.
  • But in 45 states it is legal for civilians to openly carry loaded, semiautomatic rifles in public—and in 41 of those states a person can openly carry without a permit or safety training.5 states and the District of Columbia prohibit the open carry of long guns (CA, FL, HI, IL, TN, DC), while 4 states require a permit to carry openly (IA, MA, MN, NJ).
  • This “open carry loophole” exists largely because of an absence of law. Open carry has traditionally not been legislated one way or the other, because responsible gun owners simply haven’t done it.
  • And, because federal law, and the law of most states, does not require a background check on all gun sales, in states like Virginia a person who has never passed a criminal background check can legally carry a loaded firearm openly on city streets.

Open carry is a dangerous policy opposed by law enforcement and the public.

White supremacists have long embraced open carry and the use of firearms as a method of intimidation to suppress the Constitutional rights of others.

  • White supremacists have used guns in 70% of hate-motivated attacks, according to a joint report by the FBI and the Department of Homeland Security.FBI and DHS, “White Supremacist Extremism Poses Persistent Threat of Lethal Violence,” May 10, 2017, available at https://www.documentcloud.org/documents/3924852-White-Supremacist-Extremism-JIB.html. The report concluded that “firearms will continue to pose the greatest threat of lethal violence by white supremacist extremists.”
  • White supremacists have repeatedly relied on guns to threaten and intimidate in public spaces.
  • These demonstrations are just the latest in a long history of white supremacists using open carry to carry out a campaign of intimidation and silence others.
    • During Reconstruction racist terrorist organizations used gun violence to terrorize freedmen and Republicans, gathering armed at the polls to prevent freedmen from voting.See Generally, Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1867 (1988); Charles Lane, The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction (2008); Barry A. Crouch and Donaly E. Brice, The Governor’s Hounds: The Texas State Police 1870-1873 (2011); Dale Baum, Chicanery and Intimidation in the 1869 Texas Gubernatorial Race, 97 Sw. HIST. Q. 36 (1993). This intimidation often turned to violence, such as when armed efforts to break up the 1866 Louisiana Constitutional convention resulted in the murder of 47 freedmen and Republicans.See Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1867 (1988); Charles Lane, The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction (2008); New Georgia Encyclopedia: Camilla Massacre, available at http://www.georgiaencyclopedia.org/articles/history-archaeology/camilla-massacre.
    • In response to this intimidation and violence against newly free African Americans, the military governments overseeing much of the South, and many Reconstruction state legislatures, took action to prohibit carrying firearms, either generally or at political gatherings and polling places in order to protect the rights of freedmen and Republicans to hold political rallies, attend school, go to church, and vote. See Handbook of Politics for 1868, 822-23, 828 (1868); See also 1869 Tenn. Acts 23, § 2, An Act to Amend the Criminal Laws of the State, 1870 La. Acts 160, An Act To Regulate the Conduct and to Maintain the Freedom of Party Election, § 73; 1870 Tex. Gen. Laws 63, An Act Regulating The Right To Keep And Bear Arms, Chap. 46, § 1; See Generally, Mark Anthony Frassetto, The Law and Politics of Firearms Regulation in Reconstruction Texas.

The gun lobby, which once called open carry demonstrations “scary,” has now come to support it, along with a divisive, race-baiting worldview that experts warn fuels extremism.

  • In 2014, gun extremists in Texas seeking to legalize the open carry of handguns launched a coordinated effort to openly carry rifles in restaurants. The NRA sent out a legislative alert noting that open carrying to draw attention to oneself could be “scary” and showed a “lack of consideration.”http://www.latimes.com/nation/nationnow/la-na-nn-nra-apologize-texas-long-gun-open-carry-20140604-story.html.
  • But after blowback from extremists, the NRA quickly issued an apology, stating that they unequivocally support open carry.http://www.latimes.com/nation/nationnow/la-na-nn-nra-apologize-texas-long-gun-open-carry-20140604-story.html..
  • In July, the NRA launched a dark new ad encouraging its supporters to “save our country” by “fight[ing] this violence of lies with a clenched fist of truth,” language which an ex-CIA intelligence analyst warned “fuels all extremist movements.”http://www.newsweek.com/cia-analyst-says-new-nra-video-fuel-american-extremists-630280..

Though most states allow open carry, that doesn’t necessarily mean that law enforcement is powerless to intervene in a threatening situation like Charlottesville.

  • As evidenced in Charlottesville, the dangers of open carry are especially acute at public rallies and protests.
  • Accordingly, some states that allow open carry, including Virginia, have laws regulating the use or display of firearms at public demonstrations or in an intimidating manner.
    • Virginia law prohibits carrying a firearm in public “in such manner as to reasonably induce fear.”Va. Code Ann. §18.2-282.
    • Maryland has a law prohibiting guns from demonstrations and similar public gatherings, after a warning from law enforcement.Md. Criminal Law Code Ann. §4-208.
    • Texas prohibits carrying a firearm in a public place in a manner calculated to alarm.Texas Penal Code § 42.01(a)(8).
    • Alabama prohibits bringing a firearm to a demonstration being held at a public place.Code of Ala. § 13A-11-59(b).