Is it legal to ban guns at protests? Forgotten laws resurface at coronavirus rallies
A group of nine men armed with guns gathered Friday at a cemetery to protest North Carolina’s stay-at-home order before marching through downtown Raleigh.
But not before police met them, The News & Observer reported.
Officers with the Raleigh Police Department told the group that state law prevents people from simultaneously carrying weapons and staging a protest — a law protesters argued bucks the U.S. Constitution.
“I missed the clause that says you have the right to speak and the right to carry guns — but not at the same time,” one of them told police in an exchange caught on video.
They aren’t alone in their confusion.
The Constitution grants Americans the rights to assemble and bear arms under the First and Second amendments — but a handful of states prevent them from doing both at the same time.
According to a 2017 report by The Trace, a nonprofit news organization that covers gun issues, at least six states and Washington, D.C., have laws barring firearms from rallies.
They include Alabama, California, Hawaii, Illinois, Maryland and North Carolina.
Others like Connecticut, Indiana, Massachusetts, Mississippi, Montana, New Jersey, New York, South Carolina and Tennessee allow firearms at demonstrations but permit local governments to institute their own restrictions, The Trace reported.
Another 36 states allow guns — concealed or otherwise — at rallies or don’t have a law explicitly forbidding them while also preventing local governments from interceding, according to The Trace.
That’s how armed protesters were permitted to “parad(e) around Michigan’s Capitol on Thursday,” where state law makes no mention of firearms being carried openly in public, Business Insider reported.
“Instead, Michigan State Police have cited the lack of laws against openly carrying firearms as de facto permission to do so,” according to Business Insider.
Like Michigan, North Carolina is an open-carry state.
But unlike its Midwestern counterpart, North Carolina’s General Statute carves out a specific exemption: It’s a misdemeanor for “any person participating in [a] demonstration upon … any public place” to “willfully or intentionally possess or have immediate access to any dangerous weapons.”
Some have argued the law is unconstitutional, but legal experts would say otherwise.
“Case law is clear that in most cases that the open carry of firearms will not be protected as speech under the First Amendment,” Everytown for Gun Safety — a nonprofit advocating for common sense gun reform — said in a 2017 report.
In addition to banning guns at protests, North Carolina has a law against “Going Armed To The Terror Of The People” that reportedly predates the Revolutionary War.
“By common law in North Carolina, it is unlawful for a person to arm him/herself with any unusual and dangerous weapon, for the purpose of terrifying others, and go about on public highways in a manner to cause terror to others,” according to the N.C. Department of Justice.
In a 2017 article, Slate referred to it as “the ban on intimidating gun carrying” — of which at least 17 states had adopted some version by the mid 19th century.
It’s a law widely considered “among the many valid boundaries” placed on the Second Amendment, Slate reported, citing former U.S. Supreme Court Justice Antonin Scalia.
“Like most rights, the Second Amendment right is not unlimited,” Scalia wrote in a 2008 opinion. “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Saul Cornell, an American history professor at Fordham University, analyzed Scalia’s opinion in a 2017 paper in which he stated the right to keep and bear arms was historically subject to something akin to a “balancing exercise.”
“The liberty interest associated with the right to arms was always balanced against the concept of the peace,” he wrote.
In Raleigh on Friday, the armed protesters clad in “paramilitary garb and carrying guns” told law enforcement they “planned to demonstrate peacefully,” The N&O reported.
Police didn’t make any arrests, but they did bring copies of North Carolina’s General Statute with them.
“You’re welcome to open carry. That’s fine, we’re an open carry state,” police said. “But you just can’t open carry while you’re protesting.”
This story was originally published May 4, 2020 at 3:24 PM with the headline "Is it legal to ban guns at protests? Forgotten laws resurface at coronavirus rallies."
