Arming Public Protests

Author:Timothy Zick
Position:Mills E. Godwin, Jr. Professor of Law, William & Mary Law School
Pages:223-285
SUMMARY

Public protests have become armed events, with protesters and counter-protesters openly carrying firearms-generally pursuant to state law. Many view the presence of firearms at protest events as wholly incompatible with the exercise of First Amendment free speech and assembly rights. Although the Supreme Court has yet to decide whether there is a Second Amendment right to openly carry firearms in ... (see full summary)

 
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Arming Public Protests
Timothy Zick*
ABSTRACT: Public protests h ave become armed events, with protester s and
counter-protesters openly carryi ng firearmsgenerally pursuant to state law.
Many view the presence of firearms at protest even ts as wholly incompatible
with the exercise of First Amendment free sp eech and assembly rights.
Although the Supreme Court has yet to decide whether there is a Second
Amendment right to openly carry firearms in public , all but a small handful
of states in the United States provide some lega l protection for open carry.
Taking the law as it currently stands, this Article provides a c omprehensive
assessment of the options available to offic ials who seek to regulate open carry
at public protests. It considers a number of measu res, from bans on open carry
during protest events, to measures aimed at a rmed private militias, to more
limited restrictions on the place or manner of open carry. The Article assesses
these and other regulatory alter natives from the perspective of both the First
Amendment and the Second Amendment. I t generally rejects First Amendment
arguments for protecting, or limiting , open carry at public protests. The
Article also concludes that some measures rest ricting open carry at protest
events would likely satisfy curre nt interpretations of the Seco nd Amendment.
Finally, using longstanding experience wi th public First Amendment rights
as a rough guide, the Article considers the primary factors that will likely
influence the nature and scope of the public Second Amendment.
I. INTRODUCTION ........................................................................... 224
II. THE PUBLIC FIRST AND SECOND AMENDMENTS ........................... 230
A. PUBLIC SPEECH AND ASSEMBLY............................................... 230
B. PUBLIC KEEPING AND BEARING OF ARMS ................................. 233
C. THE COMPATIBILITY QUESTION .............................................. 236
III. ARMING THE FIRST AMENDMENT ................................................. 241
A. A FIRST AMENDMENT RIGHT TO OPEN CARRY AT
PROTESTS? ............................................................................ 241
* Mills E. Godwin, Jr. Professor of Law, William & Mary Law School. Special thanks to
Joseph Blocher for his insights concerning the Second Amendment issues addr essed in the
Article. Thanks also to Paul Hellyer for excellent research assistance.
224 IOWA LAW REVIEW [Vol. 104:223
B. UNCOVERED ARMS SPEECH ..................................................... 245
C. MANNER AND PLACE REGULATIONS ........................................ 246
D. EXPRESSIVE ASSOCIATION AND “PEACEABLE ASSEMBLIES ......... 250
E. EXPRESSIVE CHILL AS A GROUND FOR LIMITING OPEN
CARRY .................................................................................. 252
IV. DISARMING PUBLIC PROTESTS ..................................................... 253
A. EXISTING FIREARMS OFFENSES ................................................ 254
B. BANNING ARMED PRIVATE MILITIAS AND OTHER ARMED
ASSEMBLIES .......................................................................... 254
C. GOING ARMED TO THE TERROR OF THE PEOPLE ....................... 257
D. PLACE AND TIME/EVENT REGULATIONS .................................. 260
E. MANNER REGULATIONS ......................................................... 264
F. ARMS-SPECIFIC RESTRICTIONS ................................................ 265
V. THE FUTURE PUBLIC SECOND AMEND MENT ................................ 267
A. GENERAL LESSONS FROM THE PUBLIC FIRST AMENDMENT ........ 268
B. EXERCISING AND POLICING OPEN CARRY ................................. 274
C. BALANCING EXPRESSIVE AND OPEN CARRY RIGHTS ................... 278
D. JUSTIFYING OPEN CARRY ........................................................ 280
E. LOOKING FORWARD ............................................................... 282
VI. CONCLUSION .............................................................................. 284
I. INTRODUCTION
In the United States, public protests, demonstrations, rallies, and
marches have become armed events.1 Participants are openly carrying
firearms, in most cases pursuant to state laws protecting this activity.2 During
the Summer of 2017, referred to by some as “the Sum mer of Hate,”3
participants at a “Unite the Right” rally in Charlottesville Virginia, openly
carried long rifles and side arms.4 In one instance, a firearm was discharged
1. See Katlyn E. DeBoer, Clash of the First and Second A mendments: Proposed Regulation of Armed
Protests, 45 HASTINGS CONST. L. Q. 333, 33740 (2018) (describing several recent examples of
armed protests). I will refer to “protests” generally, as a shorthand for other types of events
including demonstrations, marches, and rallies.
2. As used in this Article, “open carry” refers to the practice of carrying firearms in plain
view in public spaces.
3. See, e. g., Tim Morris, ‘Summer of Hate’ Should be the End of the Alt-Right Movement: Opinion,
TIMES-PICAYUNE (Aug. 15, 2017), https://www.nola.com/opinions/index.ssf/2017/08/summer_
of_hate_should_be_the_e.html.
4. See Siva Vaid hyanathan, Why the Nazis Came to Charlottesville, N.Y. TIMES (Aug. 14, 2017),
https://www.nytimes.com/2017/08/14/opinion/why-the -nazis-came-to-charlottesville.html
(discussing presence of militia groups at Charlottesville rally).
2018] ARMING PUBLIC PROTESTS 225
near a crowd of protesters but no one was injured as a result.5 At the protest,
the day’s sole fatality occurred as a result of a possible vehicular homicide.6
Nevertheless, the open and visible presence of firearms during such a large
and contentious public protest alarmed many participant s, concerned public
officials, and may even have deterred law enforcement officers from
confronting certain protesters.7
Despite having many opportunities to do so, the Supreme Court has yet
to decide whether there is a Second Amend ment right to keep and bear arms
in public.8 In District of Columbia v. Heller, the Court held that an individual
has a Second Amendment right to possess a firearms in the home for the
purpose of self-defense.9 The Court has also held that the individual right to
keep and bear arms applies against states and localities.10 The states have not
waited for a Supreme Court pronouncemen t on public carry rights. Nearly
every state now authorizes some form of a right to openly carry firearms in at
least some public places.11 In fact, only three states ban open carry outright.12
A few states ban the open carry of handguns, but not long guns (rifles and
shotguns), while a few states ban the open carry of long guns, but not
handguns.13 Several states require a license to open carry and many impose
other restrictions on the practice, such as limiting open carry in specified
places or during certain hours of the day. 14
5. Frances Robles, As White Nationalist in Charlottesville Fired, Police ‘Never Moved,’ N.Y. TIMES
(Aug. 25, 2017), https://www.nytimes.com/2017/08/25/us/charlottesville-protest -police.html
(discussing police reaction to armed protesters).
6. Jonah Engel B romwich & Alan Blinder, What We Know About James Alex Fields, Driver
Charged in Charlottesville Killing, N.Y. TIMES (Aug. 13, 2017), https://www.nytimes.com/2017/08/
13/us/james-alex-fields-charlottesvil le-driver-.html. Two polic e officers were also killed, w hen
their surveillance helicopter crashed. Matthew Haag, Death of 2 State Troopers Adds Another Layer of
Tragedy in Charlottesville, N.Y. TIMES (Aug. 14, 2017), https://www.nytimes.com/2017/08/14/
us/virginia-police-helicopter-crash.html.
7. See Joe Heim, Charlottesville Response to White Supremacist Rally is Sharply Criticized in Report,
WASH. POST (Dec. 1, 2017), htt ps://www.washingtonpost.com/local/charlottesville-response-to-
white-supremacist-rally-sharply-criticized-in-new-report/2017/12/01/9c59fe98-d6a3-11e7-a986-d0a9
770d9a3e_story.html (noti ng criticism that police did not respond to armed protesters); see also
Robles, supra note 5.
8. See, e.g., Adam Liptak, Suprem e Court Turns Down Case on Carrying Guns in Pu blic,
N.Y. TIMES (Jun. 26, 2017), https://www.nytimes.com/2017/06/26/us/politics/supreme-court-
guns-public-california.html.
9. Dis trict of Columbia v. Heller, 554 U.S. 570, 62829 (2008).
10. McDonald v. Ci ty of Chi., 561 U.S. 742, 766 (2010).
11. For a 50-state survey of current laws relating to the open and concealed carrying of
firearms, see Open Carry: State by State, GIFFORDS L. CTR. TO PREVENT GUN VIOLENCE, http://
lawcenter.giffords.org/gun-laws/state-law/50-state-summaries/open-carry-state-by-state (last updated
Nov. 16, 2017).
12. See id. (California, Florida, and Illinois).
13. See id.
14. Id.

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