Arming Public Protests

Arming Public Protests Timothy Zick * ABSTRACT: 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 public, all but a small handful of states in the United States provide some legal protection for open carry. Taking the law as it currently stands, this Article provides a comprehensive assessment of the options available to officials who seek to regulate open carry at public protests. It considers a number of measures, from bans on open carry during protest events, to measures aimed at armed private militias, to more limited restrictions on the place or manner of open carry. The Article assesses these and other regulatory alternatives from the perspective of both the First Amendment and the Second Amendment. It generally rejects First Amendment arguments for protecting, or limiting, open carry at public protests. The Article also concludes that some measures restricting open carry at protest events would likely satisfy current interpretations of the Second Amendment. Finally, using longstanding experience with 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. P UBLIC S PEECH AND A SSEMBLY ............................................... 230 B. P UBLIC K EEPING AND B EARING OF A RMS ................................. 233 C. T HE C OMPATIBILITY Q UESTION .............................................. 236 III. ARMING THE FIRST AMENDMENT ................................................. 241 A. A F IRST A MENDMENT R IGHT TO O PEN C ARRY AT P ROTESTS ? ............................................................................ 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 addressed in the Article. Thanks also to Paul Hellyer for excellent research assistance. 224 IOWA LAW REVIEW [Vol. 104:223 B. U NCOVERED A RMS S PEECH ..................................................... 245 C. M ANNER AND P LACE R EGULATIONS ........................................ 246 D. E XPRESSIVE A SSOCIATION AND “P EACEABLE ” A SSEMBLIES ......... 250 E. E XPRESSIVE C HILL AS A G ROUND FOR L IMITING O PEN C ARRY .................................................................................. 252 IV. DISARMING PUBLIC PROTESTS ..................................................... 253 A. E XISTING F IREARMS O FFENSES ................................................ 254 B. B ANNING A RMED P RIVATE M ILITIAS AND O THER A RMED A SSEMBLIES .......................................................................... 254 C. G OING A RMED TO THE T ERROR OF THE P EOPLE ....................... 257 D. P LACE AND T IME /E VENT R EGULATIONS .................................. 260 E. M ANNER R EGULATIONS ......................................................... 264 F. A RMS -S PECIFIC R ESTRICTIONS ................................................ 265 V. THE FUTURE PUBLIC SECOND AMENDMENT ................................ 267 A. G ENERAL L ESSONS FROM THE P UBLIC F IRST A MENDMENT ........ 268 B. E XERCISING AND P OLICING O PEN C ARRY ................................. 274 C. B ALANCING E XPRESSIVE AND O PEN C ARRY R IGHTS ................... 278 D. J USTIFYING O PEN C ARRY ........................................................ 280 E. L OOKING F ORWARD ............................................................... 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 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 1. See Katlyn E. DeBoer, Clash of the First and Second Amendments: Proposed Regulation of Armed Protests , 45 HASTINGS CONST. L. Q. 333, 337–40 (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 Vaidhyanathan, 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 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 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 Bromwich & 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-charlottesville-driver-.html. Two police officers were also killed, when 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), https://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 (noting criticism that police did not respond to armed protesters); see also Robles, supra note 5. 8 . See, e.g ., Adam Liptak, Supreme Court Turns Down Case on Carrying Guns in Public , N.Y. TIMES (Jun. 26, 2017), https://www.nytimes.com/2017/06/26/us/politics/supreme-court-guns-public-california.html. 9. District of Columbia v. Heller, 554 U.S. 570, 628–29 (2008). 10 . McDonald v. City 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. 226 IOWA LAW REVIEW [Vol. 104:223 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...