Arming Public Protests

By Zick, Timothy | Iowa Law Review, November 2018 | Go to article overview

Arming Public Protests


Zick, Timothy, Iowa Law Review


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 Summer 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 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 participants, 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 Amendment 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 pronouncement 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

These legislative trends, along with an open carry movement that urges its members to display firearms in public places, lie at the center of the phenomenon of arming public protests.15 Commentators have voiced concerns that public protest will be chilled or even eliminated as a result of the open presence of firearms at events.16 Constitutional scholars have argued that exercising First Amendment rights of speech and assembly is both physically and theoretically incompatible with open carry at protest events.17 Shortly after the Charlottesville rally, the American Civil Liberties Union ("ACLU") adopted a policy stating that it would no longer defend certain groups that demonstrate while openly carrying firearms.18 Critics of open carry at public protests share a common concern that the presence of firearms will transform public protests into threatening, intimidating, and violent events.19

Responding to these concerns, state and local officials have begun to consider their options in terms of regulating open carry at protests. Some have proposed restrictions on the size of protests near Civil War monuments and other public places where armed protests have occurred. 20 Others have turned to 19th-century laws prohibiting the open carrying of firearms "to the terror of the public."21 These are merely opening salvos in what promises to be a long-term debate about the presence of firearms at public protests. Assuming the political will exists and no state constitutional provision stands in the way, states can alter their open carry laws to address the problem of public protests. Indeed, as discussed in Part IV some states have already done so. 22 However, in many cases, fashioning a local response to the arming of public protests will be complicated by limits on local governmental autonomy.23 Still, even in the many states where open carry is protected, officials have options.

Unfortunately, officials have little guidance with which to navigate a course of action with regard to the arming of public protests. No reported judicial decisions have specifically addressed the intersection between First Amendment and Second Amendment rights at public protests. …

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