In late January, thousands of pro-gun activists descended on Richmond, Virginia, to protest a package of gun reform bills advancing through the state General Assembly. Many of them were armed. The specter of a massive open carry demonstration was difficult for anyone to ignore, but the day was also significant because of the people not in attendance outside the state Capitol grounds.
Fearing violence, untold numbers of counter-protesters diverted their plans to advocate for legislation on the same streets as the pro-gun activists. Among those who sat it out that day were members of a student group advocating for undocumented immigrants and gun reform advocates who had planned to hold a vigil in memory of gun violence victims. In their absence, the loudest voices in the proverbial room were those in support of gun rights.
Some legal commentators found the dynamic vexing and questioned if the protest was a healthy picture of free speech and debate. Garrett Epps, a professor of constitutional law at the University of Baltimore, was one of many to surface concerns about the First Amendment rights of the unarmed. In The Atlantic, he declared, “The right to bear arms in political debate is not the power to speak for oneself; it is, at least implicitly, the power to silence others.” The late Supreme Court Justice John Paul Stevens acknowledged this clash of rights in a dissent from 2010. “Your interest in keeping and bearing a certain firearm,” he wrote, “may diminish my interest in being and feeling safe from armed violence.”
Below, we look at the free speech implications of open carry demonstrations, and whether officials can regulate guns in protest settings to foster free speech.
Is there a First Amendment right to attend a protest free of guns?
The short answer is no, at least not right now. While some may feel that armed protesters trample on the speech rights of others, the reality is that no court would currently hold that carrying guns openly at a demonstration violates First Amendment rights to free expression and political assembly.
A First Amendment lawyer’s argument against open carry at protests would go something like this: Firearms violate the speech rights of unarmed protesters because they “chill” expression through intimidation.
But this reasoning suffers from two major problems. For one thing, freedom of speech protects individuals from government intrusion on expression, but in armed protest settings, the government is not directly involved in silencing anyone. “It’s not the government carrying the guns,” said Timothy Zick, a law professor at William and Mary Law School who has written extensively on the issue. “Indirectly, yes, the government allows people to carry guns. But it’s the individual’s decision to carry it.”
Moreover, chills on expression, which are not outright bans on speech, violate the First Amendment only under certain circumstances. Zick said, “It can be a struggle to deal with the legal concept of chill versus the human concept of it.”
For a chill on expression to cross over into a free speech violation, the threatening consequence of speech has to be immediate — like getting arrested for your dissenting speech, losing your job for your political views, or being shot at a protest. “It has to be some kind of tangible, compulsive, coercive impingement on you,” said Zick. One’s own perception that speech could get them into trouble is called “subjective chill,” and the Supreme Court has held that First Amendment claims based on that definition are dead on arrival.
As a result, a court would likely find no immediate threat to people who don’t attend protests because of open carry practices. As Zick noted, “Your willingness to rally amongst guns depends heavily on what you believe about guns.” Not everyone thinks that guns are inherently dangerous, and open carry laws by themselves don’t guarantee that people will use their firearms in a dangerous way. The U.S. Court of Appeals for the Fifth Circuit relied on this reasoning in a 2018 case about concealed carry in public university classrooms in Texas. A group of University of Texas professors argued that the presence of weapons in class would chill their First Amendment academic freedoms. But the court found they were choosing to self-censor their speech “based on the hypothetical future decisions of students.”
Do some scholars take exception to the current state of the law?
Some legal experts disagree with the jurisprudence and believe that guns in public spaces are incompatible with a functioning democracy. In a paper arguing that the Second Amendment right should exist only in the privacy of one’s home, Darrell Miller of Duke Law School argued, “The presence of a gun in public has the effect of chilling or distorting the essential channels of a democracy.” He added, “Valueless opinions enjoy an inflated currency if accompanied by threats of violence.”
Likewise, Mary Anne Franks of the University of Miami has argued that, under the sway of the gun lobby, the Supreme Court has transformed the Second Amendment into a “superright” — one with the ability to override others — with the power to cancel out the freedom of speech by intimidating people into silence. “This chilling effect,” she noted in her book The Cult of the Constitution, “is felt most acutely by the least powerful members of society.”
If there’s no First Amendment case against armed protest, can open carry events still be restricted?
Governments are far from helpless to stop people from bringing guns to protests. “There are many different gun regulations we could use that preserve both Second Amendment rights and free speech rights,” Zick said.
First, it’s important to note that the Supreme Court has itself contemplated limits on the right to bear arms, including bans on guns in “sensitive places.” Many of these locations, including Capitol grounds and university campuses, are common protest sites. Local governments can grant protest permits on the condition that the gathering is free of firearms without running afoul of the Second Amendment. Similarly, local officials can require guns to be unloaded or restrict the types of firearms protesters may carry.
Furthermore, it’s worth remembering that the Second Amendment does not grant gun carriers the right to commit crimes. Existing criminal laws prohibit brandishing or discharging firearms outside of the context of self-defense. As The Trace has reported, states could enforce very old laws that penalize people for “going armed to the terror of the public.” And many states, including those that permit open carry, have banned paramilitary activity for over a century. These laws prohibit private militias from assembling and holding drills in public. Virginia recently relied on its own anti-paramilitary statute to prevent some groups at the 2017 Charlottesville rally from protesting with guns in the future. (A bill currently making its way through the General Assembly would amend that law with language prohibiting armed persons from assembling with the intent to intimidate others.)
Still, this face-off of rights is far from over. “There are more states that permit open carry, and more people are starting to exercise that right,” said Zick. “Armed protest is going to be part of the protest landscape.”
The law in this area is still developing, and courts will likely consider how armed protests play out in real life. If violence transpired at future open carry rallies, he predicted that might bolster a First Amendment claim that weapon-toting demonstrators are limiting others’ free speech. “I think it would be difficult for any judge, whether they admitted it or not, to ignore news reports of mayhem in the streets.”
Lower courts will also have to follow new pronouncements from the Supreme Court, which has yet to establish a Second Amendment right to carry in public. But Zick believes that will change. “I think the writing is on the wall,” he said.
