Law experts: Constitutional issues often misunderstood in gun, protest and militia debates

The Duke Center for Firearms Law held a virtual roundtable discussion Tuesday.

As guns become an increasing part of conflicts around elections, political protests and demonstrations, law experts say many Americans have a fundamental misunderstanding of the legal and constitutional issues around them.

The Duke Center for Firearms Law held an online roundtable discussion Tuesday exploring the issue in the wake of the 2020 election, the insurrection at the U.S. Capitol and a rising tide of militant extremists that call themselves militias.

The forum, moderated by lecturing fellow Jacob Charles of the Duke University Law School, featured law professors Mary McCord of Georgetown University Law Center; Alan Chen of the University of Denver Sturm College of Law; and Timothy Zick of the William and Mary Law School.

The danger in a misunderstanding of established law with regard to guns was made startlingly clear last month, McCord said, when a violent mob stormed the U.S. Capitol, killing a police officer and leading to scores of injuries. Despite Washington, D.C. not being an “open carry” state, photos and video footage make it clear that many of insurrectionists were armed with guns.

Such images have unfortunately become almost commonplace at political protests and ideological clashes all over the country — including in North Carolina, where armed neo-Confederates have in the last few years repeatedly clashed with those protesting Confederate monuments.

Even when blatantly flouting local and state gun laws, McCord said, many people will point to the Second Amendment of the U.S. Constitution as granting them blanket protection to carry their guns. This is particularly true of people who are part of paramilitary groups that purport to be “militias,” McCord said.

But the constitution does not give private individuals free license to “organize themselves as militia units and call themselves forth, under their own command and control to engage in militia activity,” McCord said. The phrase “well regulated” militia in the Second Amendment has a historical context, McCord said. Even before the founding of the country, it was understood to mean regulated by the state. The founders had an antipathy toward the idea of a standing army and turned to individual militias. But those militias were then trained, funded and directed by the government. The authority to call forth militias lays with the Congress and with governors with regard to National Guard units and state militias.

“Our federalist structure has always wanted to have authority over any kind of military,” McCord said.

Twenty-nine states still have laws against groups of individuals arming themselves and parading themselves as private military units, McCord said.

In the Supreme Court’s decision in the case of District of Columbia vs. Heller, the late Justice Antonin Scalia pointedly contrasted the right of private individuals to bear arms for self defense and people doing so to establish private paramilitary groups.

“For all the gray areas of law, this really isn’t one of them,” McCord said. “The Supreme Court has been pretty clear. The Second Amendment doesn’t protect private armies.”

So why is it so common to see people carrying weapons, often as part of organized private groups, in public as parts of protests or to intimidate their political adversaries?

Partially because police don’t see it as one of their regular or primary duties to enforce these types of laws, McCord said, and partially because paramilitary groups tend to organize and train in areas that are anti-government, or where people have an absolutist view of the Second Amendment.

“In those jurisdictions most of the prosecutors, law enforcement and district attorneys are elected,” McCord said. This gives them little incentive — and, in fact, plenty of disincentive — to enforce gun laws against unlawful militias in areas where they may have public support.

Beyond organized militia groups, Chen said, individuals with guns have increasingly been showing up to polling places during contentious elections. There is a long history of this as a voter intimidation tactic in America, he said.

“During and after reconstruction, guns were often used to scare Black voters away from polling places after voting rights had been extended to them,” Chen said.

While all fifty states and Washington, D.C. prohibit electioneering in and around voting centers, only six states and the district explicitly prohibit people from openly carrying guns in polling places. Four more states prohibit concealed carry at polling places. If those polling places are government buildings or schools where guns are already prohibited that prohibition stands.

Many argue that federal law already prohibits people with guns being menacing or intimidating in polling places, Chen said. But deciding what speech or behavior is intimidating is difficult and would fall to non-law enforcement election officials who have enough to do already during elections.

Intimidation isn’t limited to polling places. Last year, an armed mob took over the state capitol building in Michigan, stopping the work of lawmakers there. In December six men were indicted in a plot to kidnap Michigan Gov. Gretchen Whitmer. 

The First Amendment protects speech and expression, Zick said. There is very little legal support, however, for the proposition that carrying a firearm is expressive conduct or speech, he said.

“There’s an obvious tension, a commonsense notion that when you bring guns to a protest it is going to have the effect of chilling some speech and assembly,” Zick said.

“It changes the tenor of speech and protest,” he said.

In places where open carry of firearms is lawful, there are sometimes conflicts between that freedom and laws or local regulations prohibiting the carrying of firearms at protests.

“We know peaceful protest and open carry can co-exist,” Zick said. He himself has seen it in his hometown of Richmond, Virginia at protests over Confederate monuments.

But the central question, Zick said, is “how to protect speech that may be chilled when peaceful protest is met with armed resistance?”

There are things that can be done to limit the impact of guns on peaceful protests, Zick said, but whether there is the political will to do it is an open question.

A blanket open carry ban is one option, Zick said, though it isn’t clear whether the Supreme Court would uphold that.

After deadly violence in Richmond, that city did specifically ban open carry at protests. As North Carolina has seen, however, police are not always willing to enforce such bans and prosecutors are not always willing to charge those who break such laws.

Widening bans already in place in public buildings and schools to places like public plazas and other popular protest areas is another possibility, Zick said. There is also the tactic of prohibiting certain types of displays of firearms or of specific types of firearms.

But again, Chen said, these would all rely on the political will to pass the regulations, the police will to enforce them and ultimately the court to uphold them.

“We don’t know yet whether the court follows the culture or the culture follows the court” on this issue, Chen said.

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Law experts: Constitutional issues often misunderstood in gun, protest and militia debates