The Supreme Court’s recent decision in New York State Rifle & Pistol Association v. Bruen, holding that there is a Second Amendment right to carry a firearm in public for self-defense and striking down a New York law requiring licensing for open carry, throws into question a range of gun regulations across the country. Commentators have focused on Bruen’s potentially serious consequences for public safety, but the decision also impacts the safety of the United States’ democratic system, including the First Amendment rights of peaceful protesters, the fundamental right to vote, and the safety of lawmakers carrying out the basic functions of governance.
Since January 2020, the United States has witnessed over 600 protests and counter-protests involving firearms. Demonstrations where some people have guns are, unsurprisingly, about six times more likely to result in violence or destruction. Armed protests are also intimidating: as one study found, individuals told that guns would be present at a protest were much less likely to say they would attend that demonstration—regardless of their political ideology or if they owned a firearm.
Guns at protests can also more directly damage core functions of our democracy and make political violence more deadly. Had the January 6th attackers been more heavily armed, the siege of the U.S. Capitol would undoubtedly have resulted in more casualties and may have prevented the certification of President Joe Biden’s election. Washington, D.C., however, has some of the country’s strongest laws restricting guns both at protests and at common protest venues like the National Mall and Capitol grounds. These bans helped reduce the number of guns that day, limiting both the bloodshed and damage to America’s democracy.
An Era of New Uncertainty Around Gun Laws
After Bruen, however, many of the gun laws in D.C. and nationwide sit on shifting constitutional ground, with uncertain consequences. As others have observed, the Court’s decision in Bruen fails to provide clear guideposts to those trying to determine whether gun regulations pass constitutional muster. Writing for the majority, Justice Clarence Thomas holds that any regulations of firearms must be “consistent with this Nation’s historical tradition of firearm regulation”—particularly those regulations in place at the time of the drafting of the Second Amendment in the late 18th century. Thomas then precedes on a “long journey” through “Anglo-American history of public carry,” discarding, without clear methodological standards, numerous potential historical analogues of New York’s licensing regime.
As Justice Stephen Breyer argues in the dissent, Thomas’s approach of reasoning by historical analogy is confusing and seemingly self-serving. Further, lower court judges are in a poor position to undertake this type of searching historical inquiry, since they neither are historians nor have the resources for such exhaustive searches of the historical record. Indeed, in a concurrence, Justice Brett Kavanaugh, joined by Justice John Roberts, finds that the current firearm licensing regimes in most states are “constitutionally permissible” because, unlike New York’s law, they do not provide state officials broad discretion in granting licenses. However, in staking this claim, Kavanaugh offers no historical parallels for these other licensing regimes, casting into further doubt how reasoning by historical analogy should work in the Second Amendment context.
The confusion created by Bruen’s apparent (or only sometimes?) requirement for firearm regulations to have an historical analogue will likely lead to a slew of new legal challenges. New York, along with six states with similar, so-called “may carry” gun licensing schemes, will almost certainly need to adopt new laws governing the public carry of handguns. But all states concerned about gun violence will have to review and, in many cases, amend their gun laws. Given the rise in the number of armed protests in the United States, lawmakers engaged in this work should also prioritize adoption of regulations that help protect the freedom of peaceful assembly from firearms.
Laws Available to Policymakers to Regulate Firearms at Places of Peaceful Assembly
There are a number of laws that can be used to regulate guns at places of peaceful assembly. Almost all states, for instance, prohibit persons using guns to “intimidate or threaten.” While such laws should be aggressively enforced at protests, they do not address the inherently chilling impact of firearms at demonstrations or remove guns from a protest before there can be violence.
A handful of states, including California, Florida, and Illinois, also have far-reaching bans on the open carrying of firearms in public, which effectively bar people from displaying firearms at public protests. Such bans help limit the intimidating effect of visible guns at protests, so lawmakers could consider an open carry ban in places that don’t already have one on the books. After Bruen, however, such bans may be on weaker footing, as Thomas approvingly cites 19th century state court judgments striking down open carry prohibitions. Indeed, gun rights advocates are already planning challenges to open carry bans.
A more jurisprudentially grounded approach in the wake of Bruen is to ban guns in “sensitive places” where protests often take place, including at statehouses, courthouses, and polling places. According to Thomas, courts can “assume it settled” that carrying firearms in such “sensitive places” can be “prohibited consistent with the Second Amendment.” (Confusingly, Thomas grants this not because such prohibitions have a longstanding history—but because of a historical absence of disputes around the few bans that the historical record does reflect.)
Most states already outlaw guns inside statehouses, but far fewer limit them on statehouse plazas and grounds—a traditional venue for protesters seeking change from their elected officials. Indeed, more than one-third of all the armed protests that occurred in 2021 were around statehouses, in some cases forcing legislatures to cancel their sessions. While not explicitly addressed in Bruen, statehouse grounds can likely be considered “sensitive places” for the purpose of firearm bans—particularly discrete areas immediately adjacent to statehouse buildings that are readily identifiable as government property. Lawmakers should follow the example of Washington state, among others, that have recently made such areas gun-free zones.
Similarly, legislators should ban guns near polling places and vote-counting centers. The presence of armed protesters at these locations can suppress turnout and intimidate both voters and poll workers. During the 2020 presidential election, armed protesters turned up at vote-counting facilities like the Maricopa County Recorder’s Office, where Trump supporters wielded AR-15s while officials inside processed Arizona ballots. Despite the gravity of this problem, only seven states and Washington, D.C. currently ban firearms at polling places, including by armed protesters.
The most direct approach to protecting the freedom of assembly from firearms is to simply ban guns at or near protests. For example, Washington, D.C. bans all firearms within 1,000 feet of a demonstration. Before enforcing the law, police must warn anyone with a gun to leave the area and only those who refuse to do so can be prosecuted.
The D.C. ordinance, which has parallels in at least three other states, directly addresses the core problems of guns at protests. While this type of regulation has not been directly scrutinized by the courts, there are reasons to believe it would survive if framed as a “sensitive place” regulation or “time, place, and manner” restriction. In Bruen, Thomas confirmed that the list of “sensitive places” is expansive, suggesting that lower courts can find that modern-day firearm bans “in new and analogous sensitive places are constitutionally permissible.” Like other “sensitive places” the Court has explicitly recognized—i.e., legislatures, courts, and voting booths—protests, and wherever they take place, are also central to the functioning of democracy. Protests also tend to involve heated emotions among different groups and are frequently attended by law enforcement (limiting self-defense arguments), all of which argues in favor of including them in the list of “sensitive places.” Further, as Paul Clement conceded on behalf of petitioners during oral arguments in Bruen, a ban on firearms at an event like a demonstration could potentially be considered a reasonable “time, place, and manner” restriction.
Finally, lawmakers can draw on and build upon longstanding prohibitions on armed private militias. In at least eleven states—including New York, Texas, and Massachusetts—anti-militia laws include bans on the marching or parading of an armed group. The Supreme Court held in 1886 that a similar ban in Illinois did not violate the Second Amendment, and reaffirmed its stance in District of Columbia v. Heller in 2008. While it is somewhat less clear how anti-militia laws would apply to solitary armed individuals marching as part of a protest, or armed individuals claiming to be providing protest security, the laws are important tools available to reduce the presence of guns at protests.
Guns at locations where protests are occurring are a serious problem that chill the rights of demonstrators and increase the risk of violence, including political violence. Bruen creates new uncertainty for gun regulation, but lawmakers still have a number of options they can—and should—pursue to protect the First Amendment right to peaceful assembly, and all fundamental activities of democracy, from firearms.