Abstract
In August 2017, white supremacist demonstrators, accompanied by private militia groups, descended on the college town of Charlottesville, Virginia to protest the removal of a controversial Confederate statue and to unite various white nationalist groups. Many protesters and militia members were heavily armed, and tensions ran high. The protest quickly descended into chaos, injuries, and even death. In the aftermath, local and state officials throughout the country wondered how to prevent similar occurrences in their communities, while respecting the First and Second Amendment rights of demonstrators. This Article surveys relevant First and Second Amendment case law and analyzes a wide variety of gun safety regulations already on the books. It concludes that state and local officials have significant latitude to enact and enforce laws that restrict the intimidating display of firearms at public demonstrations. Instead of inhibiting constitutional rights, these laws protect people’s rights to speak freely and to peaceably assemble.
Introduction
As our nation struggled with the implications of the hate-fueled events of August 12, 2017 in Charlottesville, Virginia, it became clear that the presence of a large number of heavily armed demonstrators at the Unite the Right rally terrorized peaceful protesters and made the job of law enforcement more difficult.1 Much of the commentary after Charlottesville made reference to the First and Second Amendments, suggesting that local officials and the police are straitjacketed when trying to deal with armed protesters.2 But a careful analysis of the relevant statutes and court decisions shows that state officials actually have broad leeway to pass and enforce sensible gun safety laws that prohibit, restrict, or punish the intimidating public display of firearms—without running afoul of the First or Second Amendments.
In fact, a number of states currently have such laws on the books,3 giving public officials a variety of tools to prohibit armed demonstrators from terrorizing the public and to punish those who do—laws that are entirely consistent with respecting demonstrators’ constitutional rights. These laws include limitations on openly displaying firearms in public, restrictions on carrying firearms at (or near) public demonstrations, prohibitions on armed marches or parades, prohibitions on unauthorized paramilitary training, requirements for licensing and training for public carry, and bans on armed intimidation. Other states would be well within federal constitutional limi-tations if they chose to enact and enforce similar laws. Rather than inhibit constitutional rights, these laws actually help protect them—ensuring that other citizens are able to exercise their First Amendment rights to speak freely and to peaceably assemble, without the chilling effects of heavily armed demonstrators.
We begin with an overview of the relevant Second Amendment landscape. Next, we discuss examples of several categories of laws already on the books that ban or allow local officials to prohibit the carrying of weapons at public demonstrations without infringing on Second Amendment rights. We then review limits on local authority imposed by firearm preemption laws, as well as options for less direct remedies, including permitting for public carry and enforcing generally applicable laws that criminalize the use of firearms to threaten or intimidate. We conclude with an analysis of the relevant First Amendment case law, which shows that armed protestors’ invocations of free speech are misplaced and do not alter the constitutional calculus.
I. Background on the Second Amendment, Heller, and Public Carry
The discussion begins with District of Columbia v. Heller,4 the 2008 decision in which the U.S. Supreme Court first recognized “that the Second Amendment confer[s] an individual right to keep and bear arms.”5 In this seminal case, Dick Heller, a special police officer in the District of Columbia, challenged the District’s prohibition on the possession of handguns in the home and the requirement that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock.6 Writing for the 5–4 majority, Justice Scalia analyzed the text and history of the Second Amendment and concluded that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”7
Because the challenged ordinance in Heller dealt with the possession of firearms in the home, the Supreme Court did not answer the question of the extent to which restrictions on the public carrying of firearms are consistent with the Second Amendment. But Heller made clear that “[l]ike most rights, the right secured by the Second Amendment is not unlimited” and it is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”8 The Court emphasized: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . . .”9 And Heller reaffirmed a prior Supreme Court decision from 1886, Presser v. Illinois,10 which “held that the right to keep and bear arms was not violated by a law that forbade ‘bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.’”11
There are two forms of public carry: open carry, where a firearm is visible to others, and concealed carry, where it is not. Since Heller, nearly every federal appellate court that has considered challenges to open and concealed carry regulations has recognized that state and local governments have broad leeway to regulate public carry.12 In 2013, the Third and Fourth Circuits upheld strict permitting schemes that applied to both open and concealed public carry.13 Both federal courts assumed, without deciding, that the Second Amendment covers public carrying to some extent, but concluded that state legislators have significant latitude to regulate public carry in the name of public safety.14 An earlier decision from the Fourth Circuit noted that “as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.”15 Similarly, the Second Circuit upheld a concealed carry permitting scheme, recognizing “a substantial role for state regulation of the carrying of firearms in public.”16 In addition, the Ninth Circuit recently held that the Second Amendment does not apply to concealed public carry at all, agreeing with an earlier Tenth Circuit decision that reached the same result.17 And while the Seventh Circuit struck down Illinois’s ban on all public carry—open or concealed—the ruling noted: “Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in public.”18
The outlier among the federal appellate courts is the D.C. Circuit. In a 2–1 decision, this court struck down the District’s “good-reason” requirement for concealed carrying, but only by sidestepping the required historical analysis and misinterpreting the District’s law as equivalent to a “total ban.”19 Splitting from all previous circuit court decisions that had evaluated regulations on public carry permits based on heightened need, the D.C. Circuit held that the right to carry firearms for self-defense “beyond the home” lies at the “core” of the Second Amendment.20 Although Heller placed great weight on the importance of historical analysis to determine the constitutionality of gun laws,21 the D.C. Circuit refused to get “into dense historical weeds,” simply stating that each side of the historical argument had an “equal and opposite counterpoint.”22 However, even the D.C. Circuit acknowledged that states can regulate public carry, explaining that the right of “responsible citizens to carry firearms for personal self-defense beyond the home [is] subject to longstanding restrictions” and noting that bans on carrying “in small pockets of the outside world . . . impose only lightly on most people’s right to ‘bear arms’ in public.”23
In sum, it is fair to say that the current Second Amendment judicial landscape leaves states with a wide variety of options to make sure that the open carrying of guns is not allowed to trump public safety concerns or trample the constitutional rights of others.
II. Legislative Options for Banning Weapons at Demonstrations
The strongest legislative response to the intimidating use of firearms seen in Charlottesville would be to prohibit the open carry of firearms entirely.24 As a matter of American history, many states and local governments across the country enacted and enforced prohibitions on public carrying in populated areas.25 Currently, however, only three states prohibit the open carrying of both handguns and rifles in all or most locations.26 As explained above, the vast majority of relevant court decisions to date strongly support the argument that the Second Amendment poses no barrier to reasonable open carry restrictions that are intended to further a government’s compelling interest in maintaining public safety.27 Consistent with this view, the Supreme Court of Florida recently concluded that Florida’s general ban on open carry does not violate the Second Amendment, holding that “the State has an important interest in regulating firearms as a matter of public safety.”28
Another legislative option is to prohibit guns at demonstrations on public property.29 Alabama, for example, broadly prohibits the possession of a firearm at or near a demonstration.30 North Carolina and Maryland have similar laws,31 and Virginia considered enacting one after Charlottesville.32 Other states could do the same and follow the example of North Carolina, which recently enforced that state’s prohibition on guns at demonstrations by charging two protesters who brought guns to an anti-Klan rally.33 Such prosecutions are likely to withstand any Second or First Amendment challenges, consistent with state court decisions that have “long deemed it reasonable to regulate” “‘the carrying of deadly weapons [at a] public assembly, or in a manner calculated to inspire terror’”34 to avoid the “tragic consequences” that could result if demonstrators were permitted to “legally arm themselves” and “display their weapons for the purpose of imposing their will upon the people by terror.”35
Many states prohibit groups of people from “parading,” “marching,” or “associating” in public with firearms. Currently, twenty-three states have such laws,36 and other states could adopt them. For example, under Massachusetts law: “[N]o body of men shall maintain an armory or associate together as a company or organization for drill or parade with firearms, or so drill or parade . . . .”37 Rhode Island mandates: “No body of persons, [unless expressly authorized], shall . . . parade in public with firearms in any city or town of this state.”38 These are exactly the type of laws that District of Columbia v. Heller39 reaffirmed as permissible under Presser v. Illinois,40 which upheld a similar state law against First and Second Amendment challenges more than a century earlier.41 As one leading constitutional scholar recently explained: “As a simple matter of common sense, a march or rally by people who are heavily armed is not an exercise of what the First Amendment calls ‘the right of the people peaceably to assemble.’”42
If Virginia had a law of this kind on its books—for example, prohibiting open carry, prohibiting firearms at demonstrations, or prohibiting marching with firearms—white supremacists, Nazis, the KKK, and other groups would have been prohibited from parading around with assault rifles at the ready. Any one of these laws would have protected public safety without infringing on the constitutional rights of the protesters.
Virginia—along with twenty-five other states—does have an anti-paramilitary law that makes it illegal for individuals to assemble to train with firearms, or to train others on the use of firearms, for the purpose of furthering civil disorder.43 Virginia’s law makes it a felony to teach or demonstrate the use of a firearm when the individual knows or intends that such training will be used in furtherance of civil disorder. 44 Anyone who assembles with others for the purpose of training or practicing in the use of firearms with the intent of using such training in furtherance of civil disorder also commits a felony under Virginia law.45 Because these laws have an additional mens rea requirement—requiring an intent to further civil disorder—they may be more difficult to prosecute than laws that simply prohibit bringing a firearm to a certain location.
Relying on Presser, the City of Charlottesville recently sued various militias that descended on Charlottesville in August 2017 for, inter alia, violation of Virginia’s anti-paramilitary law, seeking to prevent them from engaging in such activities again in the state.46 At the time of writing, the case was proceeding toward trial.47
III. Preemption Laws and the Limits of Local Authority
In addition to the federal Constitution, local officials have to ensure that any regulation is consistent with state law. More than forty states have firearm preemption laws that prohibit, to varying extents, local governments from adopting gun regulations.48 Such laws stand as unfortunate barriers to local control of volatile and dangerous situations like Charlottesville. In states that do not have such preemption laws, cities could pass ordinances prohibiting firearms at demonstrations. In states that do have firearm preemption laws, local authorities have limited options,49 but state legislators concerned about public safety might now be persuaded (by mayors and others) to adopt exemptions to allow municipalities to regulate open carry at public demonstrations. A number of other states have already built such exemptions into their preemption laws.50 In Mississippi, for example, while local governments are generally prohibited from regulating firearms, they may still regulate the carrying of a firearm at a “political rally, parade or official political meeting.”51 Numerous cities in Mississippi have such ordinances, including Biloxi, Greenville, and Jackson.52
Cities that are not preempted from regulating firearm possession at parades also can consider prohibiting carrying firearms or other dangerous weapons as a parade permit condition or as part of a parade security plan. Although cities and other localities cannot condition parade permits or participation on the identity of the organizers or the content of the participants’ speech, they can impose reasonable time, place, and manner restrictions—and case law supports including a prohibition on bringing firearms or other dangerous weapons as an appropriate “manner” restriction.53 Indeed, courts have cautioned that cities run the risk of being sued if they fail to adequately protect their citizens’ health and safety against foreseeable risks from firearms or other weapons at demonstrations in public areas.54
IV. Other Remedies: Requiring Permits and Training
States can also mandate that individuals obtain permits or licenses to openly carry weapons, and may condition such permits on training requirements. Currently, out of the forty-five states that allow the open carry of loaded handguns in public, fourteen require a permit or license to do so.55 And out of the forty-five states that allow open carry of loaded, semiautomatic rifles, four require a permit or identification card.56 Requiring a permit for open carry would help ensure that the would-be carriers are the “law-abiding, responsible citizens” that District of Columbia v. Heller57 had in mind. States can also limit carry permits to state residents to prevent out-of-state groups from bringing weapons with them when they travel across state lines for a protest.58
V. Enforcing Generally Applicable Criminal Laws
Beyond these options for directly regulating the carry of weapons at public demonstrations, every state in the country prohibits the use of a gun to threaten or intimidate a member of the public. Seventeen states have statutes that explicitly prohibit brandishing or displaying a firearm with the intent to cause fear or alarm.59 Ten additional states prohibit pointing a gun.60 The remaining twenty-three states criminalize using a firearm to cause fear either explicitly through their assault or threatening statutes,61 or through case law62 recognizing that these statutes criminalize such behavior.
In Virginia, for example, it is illegal to “point, hold or brandish any firearm . . . in such manner as to reasonably induce fear in the mind of another[.]”63 The same statute also makes it illegal to “hold a firearm . . . in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured.”64 Virginia authorities would have been well within their discretion to have publicized this law and their intention to enforce it before the demonstrations in Charlottesville; and, with the assistance of cell phone and other footage of the events that transpired, they also would be justified in bringing charges against those who held, brandished, or pointed their firearms in a threatening manner (and not just against the one individual who actually fired his gun).65 States could also consider ratcheting up the penalties for such intimidating and illegal uses of firearms. For example, “point[ing], hold[ing], or brandish[ing]” a gun in violation of the Virginia statute is only a misdemeanor, unless it occurs in a certain sensitive location.66
Courts have held that the Second Amendment does not pose a barrier to enforcing these brandishing and menacing statutes. For example, a Texas appellate court held that the state’s disorderly conduct law, which prohibits a person from intentionally or knowingly displaying a firearm in a public place in a manner calculated to alarm, did not violate the Second Amendment because “there is no constitutionally protected right to display a firearm in a public place in a manner that is calculated to alarm.”67 In Washington, a state appellate court rejected the constitutional argument of a man convicted of brandishing a weapon after a police officer noticed that he was carrying his AK-47 assault rifle “in a hostile, assaultive type manner with the weapon ready.”68 The court held: “People have a strong interest in being able to use public areas without fearing for their lives. The [Washington] statute protects this interest by requiring people who carry weapons to do so in a manner that will not warrant alarm.”69 Similarly, a federal court in Illinois dismissed a Second Amendment challenge brought by a dental student who was expelled from school for brandishing a handgun in public, holding: “While [the plaintiff] has a Second Amendment right to bear arms, that right does not extend to reckless conduct.”70
VI. Open Carry, Free Speech, and the Right to Peaceably Assemble
Because the Second Amendment has proven to be a poor cudgel for open carry activists, they have turned to the First Amendment. For instance, just a few days before Charlottesville, a gun rights advocate argued that gun owners should use the First Amendment to protect open carry because “[t]he First Amendment has historically been much more difficult to limit than the Second.”71 But while armed individuals frequently argue that they are exercising their First Amendment rights by openly carrying weapons, courts routinely dismiss such claims.72
The Supreme Court has rejected “the view that an apparently limitless variety of conduct can be labeled as ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”73 For example, in Virginia v. Black,74 the Supreme Court held that when cross-burning was intended to intimidate people, it was not entitled to First Amendment protection.75 In the wake of Charlottesville, affiliates of the American Civil Liberties Union, which has traditionally defended the First Amendment right of white supremacists to rally in public,76 acknowledged that “the 1st Amendment does not protect people who incite or engage in violence.”77
The Supreme Court has set out a test for assessing whether conduct is entitled to First Amendment protection, and courts applying it have had little trouble finding that openly carrying, displaying, or brandishing a firearm generally does not satisfy this test. Conduct is only protected by the First Amendment if there is “[a]n intent to convey a particularized message and in the surrounding circumstances the likelihood [is] great that the message would be understood by those who viewed it.”78 In Nordyke v. King,79 the Ninth Circuit noted: “Typically a person possessing a gun has no intent to convey a particular message, nor is any particular message likely to be understood by those who view it.”80 While the court also recognized that there were hypothetical circumstances in which “gun possession [could] be speech,”81 we are not aware of a single published opinion to date that has ruled in favor of a plaintiff who brought a First Amendment claim alleging a right to carry a firearm. Instead, courts have recognized that the common and likely reaction of reasonable citizens and law enforcement who see someone openly carrying a firearm is alarm and concern.82
For example, in 2014, a federal court in Michigan rejected the First Amendment claims of two men who had been briefly detained after concerned callers saw them walking down the street “carrying impressive looking rifles and handguns in full view.”83 The federal court had little difficulty dismissing their claims, holding that the “[p]laintiffs’ conduct cannot be considered symbolic speech for purposes of First Amendment protection.”84 The court noted that “the relevant inquiry is whether those who viewed the conduct would likely understand the ‘message’ [the two men] were trying to convey, or that there was a message of any sort involved.”85 It concluded:
Based upon the numerous emergency calls the City of Sterling Heights received from concerned citizens, it seems clear that these random observers did not apprehend that [the two men] were engaged in any [expressive activity]. Instead of perceiving [them] as open carry activists demonstrating their First or Second Amendment rights, passer-byes [sic] were simply alarmed and concerned for their safety and that of their community.86
Similarly, a court in Ohio dismissed a First Amendment claim by an armed individual because it was not clear that his alleged message would be understood by the viewer.87 The court noted: “The fact that [the plaintiff] had to explain the message he intended to convey undermines the argument that observers would likely understand the message.”88 In another case, a court threw out a similar First Amendment claim, holding:
Even assuming arguendo that Plaintiff’s intent . . . was to carry his FNP-45 Tactical pistol with a TLR-2 rail mounted tactical light and laser sight in his leg holster to increase awareness on the topic of gun control, . . . the record nonetheless does not support a great likelihood that the message would be understood by those who viewed Plaintiff.89
In that case, the court noted that “neither [the police officer] nor the person who called 911 apprehended Plaintiff’s intended message. The caller was merely alarmed.”90
In sum, the case law is clear that the open carry of firearms generally will not be protected as speech under the First Amendment. Indeed, far from erecting a hurdle to be overcome, in the context of open carry the First Amendment puts a thumb on the scale in favor of laws that protect the right to speak freely and “peaceably to assemble,”91 without fear of being terrorized. Like the plaintiffs in the aforementioned First Amendment cases, the gun-wielding militia members and demonstrators at the Charlottesville rally would have had little chance of success on a First Amendment claim if they had been detained by law enforcement. Importantly, the stated purpose of the rally had nothing to do with access to, or education about, firearms.92 In addition, certain militia leaders stated that they were there for the purported purpose of “keeping the peace” and maintaining “civil order,” not to protest about their rights to carry firearms.93
Conclusion
The gun lobby would like state and local officials to think that they have little choice but to allow the open carry of weapons in virtually every situation.94 But a close review of statutory and case law reveals that elected officials have wide latitude within the First and Second Amendments to prohibit and punish the open carry of weapons where such conduct is likely to intimidate, alarm, or terrify the public, or cause civil disorder. State and local officials committed to preventing another Charlottesville, or worse, could: (1) prohibit the open carry of firearms entirely; (2) prohibit the carrying of firearms at public demonstrations; (3) prohibit parading or marching with firearms; (4) expressly allow local jurisdictions to regulate open carry; (5) require a permit for open carry; or (6) in jurisdictions where no protective legislation can be achieved, announce in advance of any demonstration that the police will strictly enforce applicable state law that prohibit displaying a gun in a threatening or alarming manner, and then follow up by arresting and aggressively prosecuting those who violate such laws. All of these options provide opportunities for public officials to protect public safety, free speech, and the right to peaceably assemble without running afoul of protestors’ First or Second Amendment rights.
[1]. See, e.g., Sheryl Gay Stolberg, Hurt and Angry, Charlottesville Tries to Regroup From Violence, N.Y. Times (Aug. 13, 2017), https://mobile.nytimes.com/2017/08/13/us/charlottesville-protests-white-nationalists.html.
[2]. See, e.g., Ned Oliver, Richmond Police Say They Can’t Stop Unpermitted Confederate Rally or Ban Guns, Richmond Times-Dispatch (Sept. 14, 2017), http://www.richmond.com/news/local/city-of-richmond/richmond-police-say-they-can-t-stop-unpermitted-confederate-rally/article_c25223b6-4d05-54c1-9b88-8289a0dfb90b.html.
[3]. See generally supra Parts II–V.
[4]. 554 U.S. 570 (2008).
[5]. Id. at 596.
[6]. Id. at 574–76.
[7]. Id. at 635.
[8]. Id. at 626.
[9]. Id.
[10]. 116 U.S. 252 (1886).
[11]. Id. at 620 (citing Presser, 116 U.S. at 264–65).
[12]. See Drake v. Filko, 724 F.3d 426 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); Kachalsky v. Cty. of Westchester, 701 F.3d 81 (2d Cir. 2012); Hightower v. City of Boston, 693 F.3d 61 (1st Cir. 2012); United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011); see also Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) (striking down Illinois’s complete ban on public carry but noting that the state had numerous options for regulating public); but see Wrenn v. District of Columbia, 864 F.3d 650, (D.C. Cir. 2017), supra notes 19-24.
[13]. Drake, 724 F.3d 426 (upholding the constitutionality of a New Jersey law that required applicants for public-carry permits to have a “justifiable need” to carry a handgun); Woollard, 712 F.3d 865 (upholding Maryland’s requirement that a public carry applicant possess a “good and substantial” reason for wishing to carry a handgun).
[14]. Drake, 724 F.3d at 431–40 (concluding that it was inappropriate to apply strict scrutiny to public carry regulations, because such laws did not impact the “core” Second Amendment right to possess a handgun in the home for self-defense); Woollard, 712 F.3d at 876–78 (applying intermediate scrutiny to Maryland’s public carry law, and concluding that the state had a substantial interest in protecting public safety and preventing crime, particularly violent crime with handguns); see also Bonidy v. U. S. Postal Serv., 790 F.3d 1121, 1125–26 (10th Cir. 2015), cert. denied, 136 S. Ct. 1486 (2016) (assuming that the Second Amendment applies outside the home “although with less force,” and upholding a federal ban on firearms in United States Postal Service parking lots).
[15]. United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011).
[16]. Kachalsky v. Cty. of Westchester, 701 F.3d 81, 96 (2d Cir. 2012); see also Hightower v. City of Boston, 693 F.3d 61, 73 (1st Cir. 2012) (“[T]he government may regulate the carrying of concealed weapons outside of the home.”).
[17]. Compare Peruta v. Cty. of San Diego, 824 F.3d 919, 939 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 1995 (mem.), with Peterson v. Martinez, 707 F.3d 1197, 1201 (10th Cir. 2013).
[18]. Moore v. Madigan, 702 F.3d 933, 940 (7th Cir. 2012) (noting that more limited bans, such as those limited to “particular places, such as public schools,” imposed a lesser burden). Illinois courts have adopted Moore’s central holding that the Second Amendment right to self-defense applies outside the home. See, e.g., People v. Aguilar, 2 N.E.3d 321(Ill. 2013) (holding that Illinois’s comprehensive ban on firearm possession outside the home was unconstitutional). Most recently, the Illinois Supreme Court struck down Illinois’s law prohibiting firearm possession within one thousand feet of a public park, which had effectively prohibited possession of a firearm “within a vast majority of the acreage in the city of Chicago[.]” People v. Chairez, No. 121417, 2018 Ill. LEXIS 221, at *35 (Ill. Feb. 1, 2018).
[19]. Wrenn v. District of Columbia, 864 F.3d 650, 659–61, 665–66 (D.C. Cir. 2017).
[20]. Id. at 667.
[21]. See Heller, 554 U.S. at 625–27 & n.26.
[22]. Wrenn, 864 F.3d at 659–60.
[23]. Id. at 667.
[24]. See John Feinblatt, Opinion, Ban the Open Carry of Firearms, N.Y. Times (Aug. 17, 2017), https://www.nytimes.com/2017/08/17/opinion/open-carry-charlottesville.html (arguing that open carry should be prohibited because it is not part of American tradition, “corrodes our public spaces,” “infringes on our rights,” and “introduces terror and intimidation, where dialogue and debate should prevail”).
[25]. See Brief of Amicus Curiae Everytown for Gun Safety in Support of Appellants and Reversal at 11–21, Wrenn, 864 F.3d 650 (D.C. Cir. 2017) (No. 16-7067), 2016 WL 3753122, at *11–21(citing, inter alia, numerous state laws from the early and mid-nineteenth century that limited public-carry individuals who had “reasonable cause to fear an assault”).
[26]. Cal. Penal Code § 25850 (West 2012); Fla. Stat. § 790.053(1) (2017); 720 Ill. Comp. Stat. 5/24-1(a)(10) (2016). Each of these jurisdictions allows people to carry a concealed handgun in public, provided they meet certain criteria and obtain a permit to do so. California’s open carry regulations contain extensive exceptions, including an exception allowing municipal police chiefs in counties with less than 200,000 people to issue open carry licenses for handguns to county residents. Cal. Penal Code § 26155(b)(2). Illinois allows concealed carry license holders to carry their firearms “partially concealed.” 430 Ill. Comp. Stat. 66/10(c)(1). In addition to these jurisdictions, Hawaii largely prohibits the open carry of long guns, but may grant a license to open carry handguns “[w]here the urgency or the need has been sufficiently indicated.” Haw. Rev. Stat. §§ 134-5, -9 (LexisNexis 2016). Tennessee prohibits the open carry of loaded long guns. Tenn. Code Ann. §§ 39-17-1307, -1308 (Supp. 2017). New York prohibits the open carry of handguns, short-barreled rifles and assault rifles (but not other long guns). N.Y. Penal Law §§ 265.00(3), 265.03(3), 265.02(7) (2017); id. § 400 (Supp. 2018). South Carolina prohibits the open carry of handguns only. S.C. Code Ann. §§ 16-23-20, 23-31-217 (2016).
[27]. See supra notes 12–16. Some states have constitutional “right to keep and bear arms” provisions that place greater constraints on state governments to regulate public carry. See, e.g., Ala. Const. art. I, § 26(a) (“Every citizen has a fundamental right to bear arms in defense of himself or herself and the state. Any restriction on this right shall be subject to strict scrutiny.”); Mo. Const. art. I, § 23 (instructing that the right to keep and bears arms in defense of “home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned” and that any restriction on such rights “shall be subject to strict scrutiny”). State officials should make sure to also review these provisions and any relevant state judicial precedent when considering public carry regulations.
[28]. Norman v. State, 215 So. 3d 18, 22 (Fla. 2017), cert. denied, 138 S. Ct. 469 (2017). It should be noted that Norman reached that result in significant part because Florida broadly allows concealed public carry under a permissive permitting system. Id. at 28.
[29]. Such laws—neutral in their application to all groups—almost certainly would be upheld against any First Amendment challenge as well. See Geoffrey R. Stone, The Lessons of Charlottesville: Speech and Guns, HuffPost (Aug. 21, 2017, 11:49 AM), http://www.huffingtonpost.com/entry/the-lessons-of-charlottesville-speech-and-guns_us_599affa4e4b033e0fbdec648 [https://perma.cc/6PH9-HJ4A].
[30]. Ala. Code § 13A-11-59(b), (c) (2015).
[31]. Md. Code Ann., Crim. Law § 4-208(b)(2) (LexisNexis Supp. 2017); N.C. Gen. Stat. § 14-277.2 (2017) (exempting permit holders carrying concealed handguns at parades); see also Ariz. Rev. Stat. Ann. § 13-3102(A)(10) (2017); 430 Ill. Comp. Stat. Ann. 66/65(a)(10) (West 2017).
[32]. Alan Suderman, Virginia Gov. McAuliffe ‘Most Likely’ to Pursue Removal of Robert E. Lee Statue in Richmond, NBC Wash.: First Read—DMV (Aug. 21, 2017, 1:00 PM), http://www.nbcwashington.com/blogs/first-read-dmv/Virginia-Gov-McAuliffe-Most-Likely-to-Pursue-Removal-of-Robert-E-Lee-Statue-in-Richmond-441306053.html [https://perma.cc/MJ8G-PANQ].
[33]. Cliff Bellamy, Protester Charged With Bringing Handgun to Anti-Klan Rally, Herald-Sun (Aug. 31, 2017), http://www.heraldsun.com/news/local/counties/durham-county/article170424712.html [https://perma.cc/7L48-Z747]. Both men were also charged with the common law offense of “going armed to the terror of people,” a class 1 misdemeanor. Id. See also State v. Toler, 216 N.C. App. 418, at *14-16 (2011) (describing common law elements of “going armed to the terror of the people”); N.C. Gen. Stat. § 14-3(a) (Lexis Nexis 2017).
[34]. State v. Oaks, 594 S.E.2d 788, 793 (N.C. Ct. App. 2004) (quoting State v. Dawson, 159 S.E.2d 1, 10 (N.C. 1968); see also supra note 53.
[35]. Dawson, 159 S.E.2d at 11.
[36]. Ala. Code § 31-2-125 (2016); Fla. Stat. § 870.06 (2017); Ga. Code Ann. § 38-2-277 (2015); Idaho Code § 46-802 (2017); 20 Ill. Comp. Stat. 1805/94; Kan. Stat. Ann. § 48-203 (Supp. 2017); Ky. Rev. Stat. Ann. § 38.440 (West 2015); La. Stat. Ann. § 29:31 (2007); Me. Stat. tit. 37-B, § 342 (2017); Mass. Gen. Laws ch. 33, §§ 129–131 (2017); Minn. Stat. § 624.61 (2016); Miss. Code Ann. § 33-1-31 (2013); Nev. Rev. Stat. § 203.080 (2015); N.H. Rev. Stat. Ann. § 111:15 (2013); N.Y. Mil. Law § 240 (McKinney 2012); N.C. Gen. Stat. § 127A-151; N.D. Cent. Code § 37-01-21 (2016); Okla. Stat. Ann. tit. 44, § 23 (2011); 30 R.I. Gen. Laws § 30-12-7 (West 2015); Tex. Gov’t Code § 437.208 (West Supp. 2017); Wash. Rev. Code § 38.40.120 (2016); W. Va. Code § 15-1F-7 (West 2015); Wyo. Stat. Ann. § 19-8-104 (2017); see also Mich. Comp. Laws § 750.402 (West 2017) (permitting the governor, in times of “public tumult,” to direct societies whose membership is confined to members of a certain race to “not parade under arms”). These laws typically have limited exceptions.
[37]. Mass. Gen. Laws ch. 33, § 129. The constitutionality of this law was upheld in Commonwealth v. Murphy, 44 N.E. 138, 138 (Mass. 1896).
[38]. 30 R.I. Gen. Laws § 30-12-7.
[39]. 554 U.S. 570 (2008).
[40]. 116 U.S. 252 (1886).
[41]. Heller, 554 U.S. at 620 (citing Presser, 116 U.S. at 264–65).
[42]. Michael C. Dorf, Constitutional Arithmetic Post-Charlottesville: Sometimes One Plus One Equals Zero, Dorf on L. (Aug. 21, 2017, 7:00 AM), http://www.dorfonlaw.org/2017/08/constitutional-arithmetic-post.html [https://perma.cc/2YYQ-MX2C] (quoting U.S. Const. amend I).
[43]. Va. Code Ann. § 18.2-433.2 (2014); see also Ark. Code Ann. § 5-71-302 (West 2017); Cal. Penal Code § 11460 (West 2015); Colo. Rev. Stat. § 18-9-120 (2017); Conn. Gen. Stat. § 53-206b (2017); Fla. Stat. Ann. § 790.29 (West 2017); Ga. Code Ann. § 16-11-151 (West 2017); Idaho Code § 18-8103 (2002); 20 Ill. Comp. Stat. Ann. § 1805/94a; La. Stat. Ann. § 14:117.1 (West 2017); Mich. Comp. Laws Ann. § 750.528a (West 2017); Mo. Rev. Stat. § 574.070 (Supp. 2017); Mont. Code Ann. § 45-8-109 (2015); Minn. Stat. § 609.669 (2017); Neb. Rev. Stat. § 28-1481 (2017); N.J. Stat. Ann. § 2C:39-14 (West 2016); N.M. Stat. Ann. § 30-20A-3 (West 2016); N.Y. Mil. Law § 240(6) (McKinney 2015); N.C. Gen. Stat. § 14-288.20; Okla. Stat. tit. 21, § 1320.10 (2011); Or. Rev. Stat. § 166.660 (2015); 18 Pa. Cons. Stat. § 5515 (West Supp. 2015); 11 R.I. Gen. Laws § 11-55-2; S.C. Code Ann. § 16-8-20 (2016); Tenn. Code Ann. § 39-17-314 (2016); Wash. Rev. Code § 9A.48.120 (2016).
[44]. Va. Code Ann. § 18.2-433.2(1) (2014).
[45]. Id. § 18.2-433.2(2).
[46]. See First Amended Complaint for Injunctive and Declaratory Relief, City of Charlottesville v. Pa. Light Foot Militia, No. CL 17000560-00 (Cir. Ct. Charlottesville filed Jan. 4, 2018), http://www.law.georgetown.edu/academics/centers-institutes/constitutional-advocacy-protection/upload/charlottesville-complaint.pdf.
[47]. Proposed Order, City of Charlottesville, v. Pa. Light Foot Militia, Case No. CL 17000560-00 (Cir. Ct. Charlottesville filed Feb. 27, 2018) (proposed scheduling order setting trial for the Summer of 2018).
[48]. State Firearm Preemption Laws, Everytown Gun Safety (Feb. 20, 2018), https://everytownresearch.org/fact-sheet-preemption-laws/ [https://perma.cc/7MCX-UEWK]. Connecticut, Hawaii, Massachusetts, New Jersey, and New York do not have express preemption statutes pertaining to firearms ordinances. California and Nebraska have limited preemption laws that leave substantial room for municipal regulation. See Cal. Gov’t Code § 53071 (West 2012) (preempting the field of commercially manufactured firearm registration and licensing); Cal. Gov’t Code § 53071.5 (West 2012) (preempting the field of imitation firearms, except in Los Angeles County); Cal. Penal Code § 25605(b) (West 2012) (prohibiting licensing or permitting requirements in order to purchase, keep, or carry a firearm in one’s own home, place of business, or privately-owned property); Neb. Rev. Stat. Ann. § 18-1703 (West 2010).
[49]. See, e.g., Ala. Code § 13A-11-61.3(a) (2013) (stating that, except as otherwise exempted, the state “occupies and preempts the entire field of regulation in this state touching in any way upon firearms, ammunition, and firearm accessories to the complete exclusion of any order, ordinance, or rule promulgated or enforced by any political subdivision of this state”). Local officials should carefully review the scope of the preemption laws in their states in order to determine whether there is any room for regulation of open carry.
[50]. See, e.g., Md. Code Ann., Crim. Law § 4-209(b)(iii) (LexisNexis 2017); Miss. Code Ann. §§ 45-9-51, -53(1)(f) (West 2017); Mont. Code Ann. § 45-8-351(2)(a) (2015); Wyo. Stat. Ann. §§ 6-8-401, 15-1-103(a)(xviii) (2017).
[51]. Miss. Code Ann. §§ 45-9-51, -53(1)(f) (West 2017).
[52]. Biloxi, Miss., Ordinance § 13-1-10(c)(ii) (Dec. 14, 1992); Greenville, Miss., Ordinances § 8-2.5(b)(2) (Dec. 17, 1985); Jackson, Miss., Ordinance § 86-12(a)(5) (April 23, 1996).
[53]. See Potts v. City of Lafayette, 121 F.3d 1106, 1109–12 (7th Cir. 1997) (holding that a rally operations order that prohibited bringing in personal items which could be used as weapons “was a valid manner regulation”); Mitchell v. City of Morristown, No. 2:07-CV-146, 2012 WL 2501102, at *9 (E.D. Tenn. June 28, 2012) (holding that a First Amendment challenge to a security plan for a rally, which prohibited sticks and flag poles, was “frivolous” because such a policy is “objectively reasonable”); see also Grider v. Abramson, 180 F.3d 739, 748–50 (6th Cir. 1999) (holding that the use of a metal detector to keep weapons out of simultaneously timed rallies of the KKK and counterprotesters did not violate the First Amendment because it “constituted a necessary constraint narrowly fashioned to further a compelling governmental interest in public safety and order”); Stone, supra note 29.
[54]. See, e.g., Potts, 121 F.3d at 1112.
[55]. Conn. Gen. Stat. §§ 29-28(b), 35(a) (2017); Ga. Code Ann. § 16-11-126(h)(1) (2015); Haw. Rev. Stat. § 134-9 (LexisNexis 2016); Ind. Code § 35-47-2-1(a) (2017); Iowa Code § 724.4(1), (4)(i) (LexisNexis 2018); Md. Code Ann., Crim. Law § 4-203(a), (b)(2); Mass. Gen. Laws ch. 140, § 129C; ch. 140, § 131; ch. 269, § 10 (2017); Minn. Stat. § 624.714(1a) (2015); N.J. Stat. Ann. § 2C:39-5(b) (West 2016); Okla. Stat. tit. 21 §§ 1290.4, .5 (Supp. 2017); 11 R.I. Gen. Laws § 11-47-8(a) (West 2015); Tenn. Code Ann. §§ 39-17-1308(a)(2), -1351(b) (Supp. 2017); Tex. Penal Code §§ 46.02(a), .15(b)(6) (West Supp. 2018); Utah Code Ann. §§ 76-10-505(1), -523(2) (West 2015). Each of these laws has exceptions to the permitting system for certain individuals or locations.
[56]. Iowa Code § 724.4(1), (4)(i); Mass. Gen. Laws ch. 140, § 129C; ch. 140, § 131; ch. 269, § 10; Minn. Stat. § 624.7181(1)(b)(3); N.J. Stat. Ann. § 2C:39-5(c)(1).
[57]. 554 U.S. 570, 635 (2008).
[58]. See Culp v. Madigan, 840 F.3d 400 (7th Cir. 2016) (holding that the Second Amendment did not entitle plaintiffs to a preliminary injunction against an Illinois law that largely limited firearm carry permits to Illinois residents).
[59]. Ariz. Rev. Stat. Ann. § 13-2904(A)(6) (2017); Cal. Penal Code § 417(a)(2) (West Supp. 2017); Colo. Rev. Stat. § 18-9-106(1)(f) (2017); Del. Code Ann. tit. 11, § 602 (2017); Fla. Stat. § 790.10 (2017); Idaho Code § 18-3303 (2017); La. Stat. Ann. § 40:1382(A)(2) (2016); Mich. Comp. Laws § 750.234e(1) (West 2017); Miss. Code Ann. § 97-37-19 (2013); Mo. Rev. Stat. § 571.030(4) (Supp. 2017); Nev. Rev. Stat. § 202.320(1) (2015); N.Y. Penal Law § 120.14(1) (McKinney 2009); Tex. Penal Code § 42.01(a)(8) (West 2016); Utah Code Ann. § 76-10-506; Va. Code Ann. § 18.2-282 (2017); Wash. Rev. Code § 9.41.270(1) (2016); W. Va. Code § 61-7-11 (West 2015).
[60]. Ga. Code Ann. § 16-11-102; Ind. Code § 35-47-4-3(b); Minn. Stat. § 609.66(a)(2); N.C. Gen. Stat. § 14-34 (2017); Okla. Stat. tit. 21, § 1289.16 (Supp. 2018); Or. Rev. Stat. § 166.190 (2015); S.C. Code Ann. § 16-23-410 (2016); Vt. Stat. Ann. tit. 13, § 4011 (West 2007); Wyo. Stat. Ann. § 6-2-504(b) (2017); Wis. Stat. § 941.20(1)(c) (Supp. 2018).
[61]. Alaska Stat. § 11.41.220(a)(1)(A) (West 2015); Ark. Code Ann. § 5-13-204(a)(2) (West 2017); Haw. Rev. Stat. Ann. § 707-716(1)(e) (2013); 720 Ill. Comp. Stat. 5/12-2(c) (Supp. 2017); Iowa Code § 708.1(2)(c); Kan. Stat. Ann. § 21-5412(a), (b)(1) (2017); Md. Code Ann., Crim. Law § 3-202(a)(2); Mass. Gen. Laws ch. 265, § 15B; Me. Stat. tit. 17-A, §§ 209, 1252(4); Mont. Code Ann. § 45-5-213(1)(b) (2015); N.H. Rev. Stat. Ann. § 631:4(II)(a)(2) (2016); N.J. Stat. Ann. § 2C:12-1; N.M. Stat. Ann. § 30-3-2 (West 2016); 11 R.I. Gen. Laws § 11-5-2(a) (West 2015); S.D. Codified Laws § 22-18-1.1(5) (2017); Tenn. Code Ann. § 39-13-102 (2015). Numerous states that have brandishing or pointing statutes also have assault statutes, which are not listed here.
[62]. See Hoffman v. City of Montgomery, 863 So. 2d 127, 129-31 (Ala. Crim. App. 2003) (holding that the trial court properly determined that there was sufficient evidence to uphold a conviction under Alabama’s menacing statute, Ala. Code § 13A-6-23 (1975) , where the defendant pointed a firearm at an individual with the intent to place that individual in fear or imminent serious physical injury); State v. Blango, 102 Conn. App. 532, 542 (Conn. App. Ct. 2007) (upholding conviction under Connecticut’s threatening statute, Conn. Gen. Stat. § 53a-62, where defendant drove alongside three college students and, while dangling a gun from his hand, asked them if they had ever been shot); Graham v. Commonwealth, 667 S.W.2d 697, 699 (Ky. Ct. App. 1983) (holding that waving a gun at an individual constitutes menacing in violation of Ky. Rev. Stat. Ann. § 508.050 (West 1975); State v. Kistenmacher, 436 N.W.2d 168, 170-71 (Neb. 1989) (interpreting Nebraska’s assault statute, Neb. Rev. Stat. § 28-310, with the holding that “it is a correct statement of the law and therefore proper to instruct that that ‘the intentional pointing of a loaded firearm at another person, unless legally justified, is ordinarily an unlawful assault.’”); State v. McCrary, No. 10AP-881, 2011 Ohio App. LEXIS 2669, at *7-8 (Ohio Ct. App. 2011) (upholding conviction for menacing under Ohio Rev. Code Ann. § 2903.22 where the defendant displayed a handgun at the victims, causing them to believe that they were in danger of physical harm); State v. Meier, 422 N.W.2d 381, 383 (N.D. 1988) (holding that pointing an unloaded gun constituted reckless endangerment in violation of N.D. Cent. Code § 12.1-17-03 (2017)); United States v. Harris, 751 F.3d 123 (3d Cir. 2014) (upholding trial court’s determination that defendant committed simple assault in violation of 18 Pa. Con. Stat. § 2701(a)(3) (2010) when he brandished a firearm in a bar, placing patrons in fear of imminent bodily injury).
[63]. Va. Code Ann. § 18.2-282 (2014).
[64]. Id.
[65]. According to a lawsuit filed by the City of Charlottesville against the militias that participated in the Unite the Right rally, there were numerous instances of militia members brandishing their weapons at local residents. See First Amended Complaint for Injunctive and Declaratory Relief at ¶¶ 106, 120, City of Charlottesville, v. Pa. Light Foot Militia, No. CL 17000560-00 (Cir. Ct. Charlottesville filed Jan. 4, 2018), http://www.law.georgetown.edu/academics/centers-institutes/constitutional-advocacy-protection/upload/charlottesville-complaint.pdf.
[66]. Va. Code Ann. § 18.2-282 (2014).
[67]. Ex parte Poe, 491 S.W.3d 348, 355 (Tex. App. 2016). Compare id., with State v. Ross, 531 S.W.3d 878, 883–84 (Tex. App. 2017) (holding that a defendant charged with disorderly conduct in an open carry state is entitled to greater specificity in the charging instrument, because the term “alarm” in the disorderly statute is vague).
[68]. State v. Spencer, 876 P.2d 939, 940–44 (Wash. Ct. App. 1994); sees also State v. Owens, 324 P.3d 757, 763 (Wash. Ct. App. 2014).
[69]. Spencer, 876 P.2d at 942.
[70]. Mutter v. Madigan, 17 F. Supp. 3d 752, 760 (N.D. Ill. 2014).
[71]. Tyler Yzaguirre, Opinion, Why Gun Owners Should Use the First Amendment to Protect Open Carry, Hill (Aug. 8, 2017, 9:21 AM), http://thehill.com/blogs/pundits-blog/civil-rights/345675-why-gun-owners-should-use-the-first-amendment-to-protect-open [https://perma.cc/YA8U-JKTD].
[72]. See, e.g., Chesney v. City of Jackson, 171 F. Supp. 3d 605, 616–19 (E.D. Mich. 2016); Northrup v. City of Toledo Police Div., 58 F. Supp. 3d 842, 847–49 (N.D. Ohio 2014), aff’d in part and rev’d in part on other grounds sub nom. Northrup v. City of Toledo Police Dep’t, 785 F.3d 1128 (6th Cir. 2015); Baker v. Schwarb, 40 F. Supp. 3d 881, 894–95 (E.D. Mich. 2014); Burgess v. Wallingford, No. 11-cv-1129, 2013 WL 4494481, at *9–10 (D. Conn. May 15, 2013).
[73]. United States v. O’Brien, 391 U.S 367, 376 (1968).
[74]. 538 U.S. 343 (2003).
[75]. Id. at 343, 347–48.
[76]. See Vill. of Skokie v. Nat’l Socialist Party of Am., 373 N.E.2d 21(Ill. 1978).
[77]. Matt Pearce, Tensions Grow Inside ACLU Over Defending Free-Speech Rights for the Far Right, L.A. Times (Aug. 17, 2017, 6:55 PM), http://www.latimes.com/nation/la-na-aclu-tensions-20170817-story.html [https://perma.cc/H2D9-5VX3] (quoting Press Release, ACLU, ACLU of California Statement: White Supremacist Violence Is Not Free Speech (Aug. 16, 2017), https://www.aclunc.org/news/aclu-california-statement-white-supremacist-violence-not-free-speech).
[78]. Spence v. Washington, 418 U.S. 405, 410–11 (1974).
[79]. 319 F.3d 1185 (9th Cir. 2003).
[80]. Id. at 1190.
[81]. Id.
[82]. See, e.g., Chesney v. City of Jackson, 171 F. Supp. 3d 605, 618 (E.D. Mich. 2016); Deffert v. Moe, 111 F. Supp. 3d 797, 814 (W.D. Mich. 2015); Baker v. Schwarb, 40 F. Supp. 3d 881, 895 (E.D. Mich. 2014); Northrup v. City of Toledo Police Div., 58 F. Supp. 3d 842, 846-48 (N.D. Ohio 2014), aff’d in part and rev’d in part on other grounds sub nom., Northrup v. City of Toledo Police Dep’t, 785 F.3d 1128 (6th Cir. 2015); see also Burgess v. Wallingford, No. 11-cv-1129, 2013 WL 4494481, at *5-6, 27-29 (D. Conn. May 15, 2013).
[83]. Baker, 40 F. Supp. 3d at 884.
[84]. Id. at 895.
[85]. Id. (citing Spence, 418 U.S. at 410–11).
[86]. Id.
[87]. Northrup, 58 F. Supp. 3d at 848.
[88]. Id. at 848.
[89]. Deffert, 111 F. Supp. 3d at 814.
[90]. Id.
[91]. U.S. Const. amend. I.
[92]. See, e.g., Complaint for Declaratory and Injunctive Relief and Damages at 2, Kessler v. City of Charlottesville, No. 17-cv-00056 (W.D. Va. Aug. 10, 2017) (arguing that the purpose of the Unite the Right rally was to “communicate a message that relates directly to [Emancipation] Park—specifically [Jason Kessler’s] opposition to the City’s decisions to rename the Park”).
[93]. See, e.g., Paul Duggan, Militiamen Came to Charlottesville as Neutral First Amendment Protectors, Commander Says, Wash. Post (Aug. 13, 2017), https://www.washingtonpost.com/local/trafficandcommuting/militiamen-came-to-charlottesville-as-neutral-first-amendment-protectors-commander-says/2017/08/13/d3928794-8055-11e7-ab27-1a21a8e006ab_story.html.
[94] See, e.g., Brief of Amicus Curiae NRA of Am. in Support of Petitioner at 2, 17, Norman v. State, No. SC15-650 (Fla. filed Apr. 18, 2016) (arguing that the Second Amendment “guarantees a right to carry openly” and that strict scrutiny is “the most appropriate” traditional scrutiny analysis).
