The presence of counterprotesters openly carrying firearms has become commonplace this past summer. At least 45 states allow open carry in at least some circumstances, and some people aren’t shy about using that right to terrify others. In the shadow of such laws, police often are forced to stand idly by when armed protesters arrive on the scene.
The Second Amendment right to bear arms cannot coexist with the First Amendment “right of the people peaceably to assemble.” The presence of counterprotesters carrying deadly weapons has had a chilling effect on the rights of others to engage in expressive association. When men wearing body armor and carrying AR-15s chose to attend a campaign event at Kent State University in September 2019, former Texas congressman Beto O’Rourke was right to call out their action as an effort “to intimidate.”
While not every armed counterprotester may intend to stifle free speech, carrying an AR-15 to a rally supporting a ban on AR-15s sends its own message. But firearms are different from other forms of communication. The marketplace of ideas can be distorted when one side of the debate has the ability to kill without warning. As law professor Darrell Miller has observed, even “valueless opinions enjoy an inflated currency if accompanied by threats of violence.”
A simple legal change can go a long way toward accommodating both constitutional interests. States and cities should give their citizens the right to choose to assemble without firearms. Such a change would require nothing more than adding a check box for gun-free events to the special event application forms that organizers fill out to obtain permits for public marches, rallies and other demonstrations. We are aware of no major U.S. cities that have a gun-free option on their special event permit forms.
Properly licensed gun owners in many open-carry states have a right to gather at their own events with firearms. But counterprotestors should not be allowed to openly carry firearms to events that organizers designate to be gun-free.
Armed counterprotests stand on different footing from armed protests because the presence of armed detractors can impede the ability of the organizing group to engage in “expressive association.” The presence of armed counterprotesters can also escalate to violence, as when a counterprotestor opened fire at a 2017 rally in Charlottesville.
The rights of those who want to express their opposition to a planned event and carry weapons can be accommodated by establishing separate, “open-carry zones” where counterprotesters can gather without endangering public safety or the rights of others.
What’s more, giving event organizers a gun-free option would be attractive to many police departments that have found it difficult to maintain public order in volatile situations with armed antagonists. This is why the Cleveland police union asked the Ohio governor to suspend open carry in the entire city for the duration of the 2016 Republican National Convention. (Then-Gov. John Kasich (R) declined.)
Several states have gone further and prohibited open carry at all demonstrations and public events. Even the gun-loving state of Alabama has a statute making it “unlawful for any person, other than a law enforcement officer, to have in his or her possession … any firearm while participating in or attending any demonstration being held at a public place.”
There is a credible argument that the First Amendment right “peaceably to assemble” requires states to offer its citizens the right to organize gun-free meetings. Even without deciding whether the local permitting process constitutes sufficient “state action” to trigger constitutional protection, state and local officials of all political persuasions should be willing to embrace, without judicial intervention, giving organizers the option of assembling in gun-free public spaces.
We are used to thinking that gun control necessarily means restricting a constitutional right. But a check-the-box option for gun-free meetings would enhance public safety and our constitutional right to assemble. Assembly, and the right to vote free of intimidation, are particularly in need of protection with Election Day nearly upon us.