William & Mary Bill of Rights Journal William & Mary Bill of Rights Journal
Volume
30 (2021-2022)
Issue 4
Article 3
5-2022
The First Amendment Weaponized: When Guns Become Public The First Amendment Weaponized: When Guns Become Public
Discourse Discourse
Danny Li
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Danny Li,
The First Amendment Weaponized: When Guns Become Public Discourse
, 30 Wm. &
Mary Bill Rts. J. 925 (2022), https://scholarship.law.wm.edu/wmborj/vol30/iss4/3
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THE FIRST AMENDMENT WEAPONIZED: WHEN GUNS
BECOME PUBLIC DISCOURSE
Danny Li
*
This Article discusses First Amendment challenges asserted against gun control
measures—inside and outside our courts. It explains at length why existing doctrinal
approaches to resolving these challenges fail, providing an alternative account of
why the First Amendment should not be construed liberally to protect the open carry
of firearms. As guns in public spaces and protests become commonplace, we can
expect not only continual First Amendment challenges to gun control measures, but
also the growing prevalence of First Amendment claims asserted in the public by
advocates and gun owners to justify open carry—and the forging of new constitu-
tional meanings and social norms. This Article maps a doctrinal path that judges
should take to reject these challenges while providing a conceptual language for
bystanders to reassert and reclaim their rights to public safety and participation from
open carriers trying to weaponize the First Amendment.
To courts, the Article argues that the practice of open carry is too divorced from
the value of democratic self-governance to constitute public discourse deserving of
First Amendment coverage. Courts should deny First Amendment coverage to gun
carry both because bearing arms in public does not facilitate the formation of public
opinion and because doing so preserves the social and legal norms that exclude guns
from the public sphere. These norms—encoded in commonplace gun control laws—
serve important constitutional values and interests central to the First Amendment.
To nonjudicial audiences, the Article calls for advocates of gun control to flip
the script on these First Amendment claims and forcefully articulate the ways that
guns in public spaces threaten the free and equal exercise of constitutional rights to
free speech, assembly, and political participation more broadly. These First Amend-
ment challenges illustrate the extent to which pro-gun rights movements transcend
the jurisprudential boundaries of the Second Amendment. Evolving popular beliefs
about the right to bear arms trickle down into popular beliefs about other, adjacent
constitutional rights like the First Amendment right to freedom of speech. Through
considering these First Amendment challenges to gun control measures and looking
beyond their lack of judicial success, we can begin to see how popular beliefs about
the right to bear arms are gradually evolving to incorporate First Amendment values.
Guns are transformed into public discourse—symbols and forms of political speech.
* JD, Yale Law School; MA, University College London; BA, Columbia University.
Many thanks to Joseph Blocher, Reva Siegel, and Robert Post for inspiring the project and for
invaluable comments and discussion. Additional thanks to the editors of the William & Mary
Bill of Rights Journal for their hard work bringing this piece to publication.
925
926 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
I
NTRODUCTION
Each year, the Virginia Citizens Defense League—a gun-rights group—holds
“Lobby” Day in Richmond, Virginia.
1
In 2020, gun-rights advocacy groups planned
large rallies to protest a number of gun-control bills under consideration by the
Democrat-controlled Virginia legislature.
2
In response to intelligence reports that
armed militia and extremist groups planned on joining these rallies and storming the
state capital, Virginia Governor Ralph Northam declared a state of emergency and
temporarily banned guns on Capitol grounds in advance of Lobby Day.
3
The next day, Gun Owners of America—one of the groups involved in planning
Lobby Day—sued Northam, seeking a preliminary injunction on the temporary gun
ban.
4
As expected, the plaintiff organization challenged the temporary ban on grounds
that it violated their Second Amendment rights to bear arms at the State Capitol.
5
More notably, Gun Owners of America advanced another constitutional claim—a
First Amendment challenge. In their complaint, they argued:
[T]he unique nature, and power of Lobby Day is the combination
of the two rights, exercised together. More specifically, the act
of peaceably and openly carrying firearms—which has been done
at numerous other “Lobby Day” rallies at the same location over
many years without incident—is itself a form of protected speech,
1
Lobby Day is an annual event for the Virginia Citizens Defense League where pro-gun
activists lobby members of the state government and voice their disagreement with various gun
control measures. Jane Coaston, The Virginia Gun Rights Rally Raising Fears of Violence,
Explained, V
OX (Jan. 17, 2020), https://www.vox.com/2020/1/17/21067627/virginia-lobby
-day-gun-laws-extremism [https://perma.cc/9UYY-64NL].
2
The measures under consideration included:
a bill requiring background checks on all firearms purchases and trans-
fers; a bill limiting a number of handguns that can be purchased per
month, a bill to permit localities to ban guns from specific events and
venues, and ‘red flag’ legislation that would permit law enforcement to
take guns from people deemed risks to themselves or others.
Id.
3
Laura Vozzella, Northam Declares Emergency, Temporarily Bans Weapons on Capitol
Grounds, W
ASH.POST (Jan. 15, 2020), https://www.washingtonpost.com/local/virginia-poli
tics/northam-temporarily-bans-firearms-other-weapons-on-capitol-grounds/2020/01/15/c432
b55a-37a8-11ea-bb7b-265f4554af6d_story.html [https://perma.cc/M7QW-SJWG].
4
Ali Rockett & Mel Leonor, Gun Activists Appeal to Virginia Supreme Court After
Judge Rejects Bid to Halt Gun Ban in Capitol Square, R
ICHMOND TIMES-DISPATCH (Jan. 16,
2020), https://richmond.com/news/virginia/update-gun-activists-appeal-to-virginia-supreme
-court-after-judge-rejects-bid-to-halt-gun/article_7ce8eb14-e2ed-5e6c-a012-7ef3816aa791
.html [https://perma.cc/4WB2-6M49].
5
Id.
2022] THE FIRST AMENDMENT WEAPONIZED 927
particularly when the Rally is specifically intended to express
opinions to public officials through the symbolic act of bearing
arms. . . . It is difficult to imagine a more clear example of an
event where carrying firearms is intended to convey an unam-
biguous political message.
6
A Richmond circuit court judge denied the injunction request in a three-page
order, citing the Supreme Court’s caveat in Heller that nothing in their decision
should be interpreted as casting doubt on “laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings.”
7
The order com-
pletely ignored the First Amendment claim.
8
The plaintiffs appealed to the Virginia
Supreme Court, arguing that “the Circuit Court erred in completely disregarding
petitioners’ First Amendment argument.”
9
The Virginia Supreme Court promptly dis-
missed the appeal without a discussion of the merits.
10
With Governor Northam’s Executive Order still in place, an estimated 22,000
people gathered to demonstrate in Richmond on Lobby Day.
11
Although demonstra-
tors within the Capitol Square were prohibited from bearing arms, nothing stopped
the thousands of protestors marching down Richmond streets from carrying their
weapons in plain sight.
12
Some demonstrators were dressed in camouflage and
helmets, others donned Revolutionary War uniforms, and still others dressed casually
but slung rifles across their chests.
13
First Amendment challenges to gun regulations are on the rise—in courts and
in the public.
14
These challenges all appeal to what the Gun Owners of America
called the “symbolic act of bearing arms.”
15
They claim that bearing arms constitutes
speech covered by the First Amendment.
16
However, judges faced with these claims
have been quick to dismiss First Amendment arguments for expanding the right to
bear arms. Likely as a result, First and Second Amendment scholars have only
6
Complaint at 7–8, Gun Owners of Am., Inc. v. Northam, No. CL20-279-4 (Va. Cir. Ct.
Jan. 16, 2020) (emphasis added).
7
Gun Owners of Am., Inc. v. Northam, No. CL20-279, at 2 (Va. Cir. Ct. Jan. 16, 2020).
8
Id.
9
Emergency Petition for Review at 2, Gun Owners of Am., Inc. v. Northam, No. CL20
-279 (Va. Jan. 16, 2020).
10
See generally Gun Owners of Am., No. CL20-279 (Va. Cir. Ct. Jan. 16, 2020).
11
Bill Chappell, Richmond Gun Rally: Thousands of Gun Owners Converge on Virginia
Capitol on MLK Day, NPR (Jan. 20, 2020), https://www.npr.org/2020/01/20/797895183/rich
mond-gun-rally-thousands-of-gun-owners-converge-on-virginia-capitol-on-mlk-d [https://
perma.cc/A8RU-WPKT].
12
Id.
13
Id.
14
See infra Sections II.A and II.B.
15
Complaint at 7–8, Gun Owners of Am., Inc., No. CL20-279-4 (emphasis added).
16
Id.
928 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
begun to consider whether bearing arms can itself be a form of constitutionally
protected speech.
17
But these challenges deserve a closer look. Since Heller,
18
the Supreme Court
has repeatedly refused to definitively extend Second Amendment protection outside
the home.
19
In contrast, the Court has enthusiastically transformed the First Amend-
ment into a deregulatory tool, expanding its scope of protection to all kinds of
conduct—conduct which previously would never have been conceived of as “speech”.
20
Or, as Justice Kagan put bluntly, the Court is “weaponizing the First Amendment.”
21
And even in rejecting First Amendment challenges to gun laws, courts have con-
fined their holdings to the facts and expressed a willingness to accept them in future
cases under a different set of facts.
22
Meanwhile, the incidence of armed demonstrations shows no signs of decline.
A year after Governor Northam’s temporary ban on firearms at the Virginia Capitol,
state legislatures across the country are moving forward with permanent bans on the
carrying of firearms on state capitol grounds in the wake of violent riots at the U.S.
Capitol (and state houses) on January 6, 2021.
23
Gun-rights organizations have
vowed to challenge these measures in court and continue to publicly advocate using
the First Amendment to strategically supplement the Second.
17
For existing discussions of this issue, see TIMOTHY ZICK, THE DYNAMIC FREE SPEECH
CLAUSE 219–25 (2018) [hereinafter ZICK, DYNAMIC FREE SPEECH CLAUSE] (“In some very
limited circumstances, the keeping and bearing of firearms might be sufficiently expressive
to constitute speech covered by the Free Speech Clause.”); Daniel Horwitz, Open-Carry:
Open-Conversation or Open-Threat?, 15 F
IRST AMEND.L.REV. 96, 112 (2017) (“Simply put,
no, guns are not speech.”); Luke Morgan, Note, Leave Your Guns at Home: The Constitution-
ality of a Prohibition on Carrying Firearms at Political Demonstrations, 68 D
UKE L.J. 175,
186–90 (2018) (arguing that gun possession at public demonstrations should be “categorically
excluded from First Amendment coverage” and that public demonstrations fall under the
Heller “sensitive places” exception because of their expressive significance); Eric Tirschwell
& Alla Lefkowitz, Prohibiting Guns at Public Demonstrations: Debunking First and Second
Amendment Myths After Charlottesville, 65 UCLA L. R
EV.DISC. 172 (2018); and Timothy
Zick, Arming Public Protests, 104 I
OWA L. REV. 228 (2018).
Recently, Michael Dorf refuted a related but distinct argument that the First Amendment’s
assembly clause—rather than the free speech clause—might, in conjunction with the Second
Amendment, guarantee a right to armed assembly. See Michael C. Dorf, When Two Rights
Make a Wrong: Armed Assembly Under the First and Second Amendments, 116 N
W.U.L.
R
EV.111, 114 (2021).
18
District of Columbia v. Heller, 554 U.S. 570 (2008).
19
See infra Section I.A.
20
See infra Section I.B.
21
Janus v. Am. Fed’n of State, City, & Mun. Emps., Council 31, 138 S. Ct. 2448, 2501–02
(2018) (Kagan, J., dissenting) (citations omitted).
22
Zick, Arming Public Protests, supra note 17, at 223.
23
See Rebecca Falconer, Guns in Statehouses in the Spotlight After Armed Protests, AXIOS
(Feb. 21, 2020), https://www.axios.com/guns-statehouses-spotlight-armed-protests-23952653
-0d5b-41e5-a90c-66687a26c1e8.html [https://perma.cc/KD7E-VS9N].
2022] THE FIRST AMENDMENT WEAPONIZED 929
This Article provides a roadmap for how judges, litigators, and the public at-large
ought to analyze—and ultimately reject—these First Amendment challenges. It
considers at length when and how bearing arms is speech covered by the First Amend-
ment. In doing so, it also provides the first extensive survey of these challenges.
The Article proceeds as follows: Part I situates First Amendment open-carry
challenges in the context of developing trends in First and Second Amendment
jurisprudence.
24
Part II presents the Article’s positive argument.
25
It begins with a
comprehensive survey of the case law, showing that courts have largely dismissed
First Amendment open-carry challenges on grounds that bearing guns in public fails
the Spence test for First Amendment coverage.
26
It then argues that the Spence test
is an analytically unworkable standard for First Amendment coverage and, as a result,
has left the door open to future First Amendment protection for arms bearing.
27
As an alternative, the Article urges courts to adopt a value-sensitive approach
to First Amendment coverage. It uses the example of guns at protests as a test case
for modeling this approach. Part III elaborates and concludes the jurisprudential argu-
ment, explaining that to overcome radically divergent social interpretations of arms
bearing, courts must engage in normative analysis that takes account of the constitu-
tional values at stake in extending First Amendment coverage to public carry.
28
Courts
should deny First Amendment coverage to gun carry both because bearing arms in
public does not facilitate the formation of public opinion and because doing so pre-
serves the social and legal norms that exclude guns from the public sphere.
29
These
norms—encoded in commonplace gun-control laws—serve important constitutional
values and interests central to the First Amendment.
Finally, Part IV expands the frame beyond the First Amendment challenges
asserted in courts.
30
It suggests that these challenges illustrate the extent to which
pro-gun-rights movements transcend the jurisprudential boundaries of the Second
Amendment.
31
Evolving popular beliefs about the right to bear arms trickle down
into popular beliefs about other, adjacent constitutional rights like the First Amend-
ment right to freedom of speech. Once we consider these First Amendment challenges
to gun control measures and look beyond their lack of judicial success, we can begin
to see how popular beliefs about the right to bear arms are gradually evolving to
incorporate First Amendment values. Guns are transformed into public discourse—
symbols and forms of political speech.
32
24
See infra Part I.
25
See infra Part II.
26
See infra Sections II.A–B.
27
See infra Sections II.C–D.
28
See infra Part III.
29
Id.
30
See infra Part IV.
31
See infra Section IV.A.
32
See infra Section IV.B.
930 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
The Article concludes with a call for advocates of gun control to flip the script
on these First Amendment claims and forcefully articulate the way that guns in
public spaces threaten the free and equal exercise of constitutional rights to free
speech, assembly, and political participation more broadly.
33
I. FIRST AMENDMENT BACKUP
This Section situates First Amendment open-carry challenges in the context of
developing trends in First and Second Amendment jurisprudence. Doing so will help
us to make sense of why these seemingly counterintuitive claims continue to be ad-
vanced by gun-rights advocates and gun owners. The basic claim is simple: Whereas
the Second Amendment (until recently) has remained stuck at a jurisprudential
standstill, confined largely within the home, the First Amendment’s reach continues
to expand, its protection strongest in the public domain.
A. A Homebound Second Amendment
As a preface, it is worth observing that commentators who characterized Heller
as the death knell of gun-control regulation in the United States were mistaken.
34
On
the one hand, prior to the D.C. Circuit’s Heller ruling, no federal appellate court had
ever invoked the Second Amendment to invalidate a gun-control law.
35
But on the
other hand, predictions about the potential havoc Heller would wreck on state gun
laws have surely been overstated. Since Heller, the overwhelming majority of Second
Amendment challenges have failed.
36
In a 2018 survey of 1,153 Second Amendment
challenges since Heller, Joseph Blocher and Eric Ruben discovered that only 108
were not rejected, for a total success rate of nine percent.
37
As an initial matter, then,
the Second Amendment remains a limited tool for dismantling gun control laws.
But doctrinally speaking, the Second Amendment is even more constrained
when applied to public-carry regulations, because in Heller the Supreme Court made
clear that Second Amendment protection is strongest in the home. The Heller Court
33
See infra Conclusion.
34
See, e.g., Editorial, Lock and Load, N.Y. TIMES (June 27, 2008), at A18 (arguing that
Heller gave “gun-rights advocates a powerful new legal tool to try to strike down gun-control
laws”); Patrik Jonsson, Cities’ Gun Restrictions Begin to Topple, C
HRISTIAN SCI.MONITOR
(June 20, 2009), http://www.csmonitor.com/USA/2009/0620/p02s02-usgn.html [https://
perma.cc/7WLM-LMWY].
35
Joseph Blocher, Gun Rights Talk, 94 B.U. L. REV. 813, 816–17 (2014).
36
Id. at 818–19.
37
Joseph Blocher & Eric Ruben, From Theory to Doctrine: An Empirical Analysis of the
Right to Keep and Bear Arms After Heller, 67 D
UKE L.J. 1433, 1472 (2018). Blocher and
Ruben note, however, that “[t]he low success rate of Second Amendment claims does not show
that the right is being underenforced,” but rather “the low rate of success probably has more
to do with the claims being asserted than with judicial hostility to the right.” Id. at 1507.
2022] THE FIRST AMENDMENT WEAPONIZED 931
invalidated a District of Columbia law which essentially prohibited “the possession
of usable handguns in the home.”
38
The Court explained that the law extends
to the home, where the need for defense of self, family, and prop-
erty is most acute. Under any standards of scrutiny that we have
applied to enumerated constitutional rights, banning from the
home ‘the most preferred firearm in the nation to “keep” and use
for protection of one’s home and family,’ would fail constitu-
tional muster.
39
That does not, of course, mean that the Second Amendment value of self-defense
is not operative outside the home.
40
In Moore v. Madigan, the Seventh Circuit struck
down an Illinois law prohibiting the carrying of firearms outside the home or places
of business.
41
Writing for the court, Judge Richard Posner explained that the Court’s
reasoning in Heller “doesn’t mean [the interest in self-defense] is not acute outside
the home. . . . Confrontations are not limited to the home.”
42
Even so, there is no
consensus among federal appellate courts as to whether the Second Amendment
protects a right to bear arms outside the home. In United States v. Masciandaro,
43
for instance, the Fourth Circuit concluded that Heller is silent on this issue, and that
appellate courts should wait for clearer direction from the Supreme Court.
44
Writing
for the court, Judge Harvie Wilkinson explained:
There may or may not be a Second Amendment right in some
places beyond the home, but we have no idea what those places
are, what the criteria for selecting them should be, what sliding
scales of scrutiny might apply to them, or any one of a number
of other questions.
45
The Second Circuit, on the other hand, has held that because home defense lies
at the core of the Second Amendment, restrictions on the public carry of firearms
38
District of Columbia v. Heller, 554 U.S. 570, 573 (2008).
39
Id. at 628–29 (emphasis added).
40
For a survey of appellate court treatments of the Second Amendment to regulations of
gun use outside the home, see David Kopel & Joseph Greenlee, The Federal Circuits’ Second
Amendment Doctrines, 61 S
T.LOUIS U. L.J. 193, 256–74 (2017).
41
Id. at 258.
42
Moore v. Madigan, 702 F.3d 933, 935–36 (7th Cir. 2012). Judge Posner also argued that,
“[t]o speak of ‘bearing’ arms within one’s home would at all times have been an awkward
usage. A right to bear arms thus implies a right to carry a loaded gun outside the home.” Id.
43
United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011).
44
“On the question of Heller’s applicability outside the home environment, we think it
prudent to await direction from the Court itself.” Id. at 475.
45
Id. In Hightower v. City of Boston, the First Circuit echoed Judge Wilkinson’s decision
not to extend Second Amendment protections beyond the home. 693 F.3d 61, 74 (1st Cir. 2012).
932 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
should be subject to a lower level of scrutiny.
46
And in the strongest repudiation of
Second Amendment rights in public by a federal appellate court, the en banc panel of
the Ninth Circuit held in Peruta v. City of San Diego that “there is no Second Amend-
ment right for members of the general public to carry concealed firearms in public.”
47
Given that the open carrying of firearms is prohibited in California, the Ninth Cir-
cuit’s decision effectively banned the possession of firearms in public altogether.
48
In years past, the Court has repeatedly turned down opportunities to extend
Second Amendment protection outside the home. New York State Rifle & Pistol
Association v. City of New York (NYSRPA),
49
the Court’s first Second Amendment
case since its decision in McDonald v. City of Chicago
50
ten years earlier, presented
one such opportunity. When the Court granted review in NYSRPA, a case involving
a Second Amendment challenge to a New York City law banning the transport of
handguns outside the city, many expected a clear pronouncement from the Court on
the Second Amendment’s reach outside the home.
A few months after the Court granted certiorari, however, New York City
changed its regulations to allow gun owners to transport their guns to, among other
places, second homes and shooting ranges outside the city.
51
In a 6–3 decision, the
Court concluded that, because of changes to New York City’s gun-control regula-
tions, the case had become moot.
52
On the same day that NYSRPA was decided, the
Court distributed for consideration ten other Second Amendment cases that had been
on hold. But a month later, the Court denied review in all ten cases.
53
Justice
Thomas dissented from the denial of review in Rogers v. Grewal, a case from New
Jersey, which grants licenses to carry a handgun in public only if the applicant can
show a “justifiable need.”
54
Justice Thomas lamented that “[o]ne would think that
such an onerous burden” as the New Jersey scheme “on a fundamental right would
warrant this Court’s review.”
55
He observed that the Court “would almost certainly
review the constitutionality of a law requiring citizens to establish a justifiable need
before exercising their free speech rights.”
56
46
See Kachalsky v. City of Westchester, 701 F.3d 81, 93–95 (2d Cir. 2012).
47
Peruta v. City of San Diego, 824 F.3d 919, 927 (9th Cir. 2016).
48
Kopel & Greenlee, supra note 40, at 268.
49
New York State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525 (2020).
50
McDonald v. City of Chicago, 561 U.S. 742 (2010).
51
Alexandra Jones, New York Gun Rights Case Tossed as Moot From Top Court, COURT-
HOUSE NEWS SERV. (Apr. 27, 2020), https://www.courthousenews.com/new-york-gun-rights
-case-tossed-as-moot-from-top-court/ [https://perma.cc/NCM2-JKPE].
52
Id.
53
Amy Howe, Court to Take Up Major Gun-Rights Case, SCOTUSBLOG (April 26,
2021), https://www.scotusblog.com/2021/04/court-to-take-up-major-gun-rights-case/ [https://
perma.cc/Z4RF-D27X].
54
Rogers v. Grewal, 140 S. Ct. 1865, 1865 (2020) (Thomas, J., dissenting from denial
of certiorari).
55
Id.
56
Id. Some Justices, including Justice Thomas, have alleged that the Second Amendment
2022] THE FIRST AMENDMENT WEAPONIZED 933
***
At the time of this writing, the Court granted review in New York State Rifle &
Pistol Association v. Bruen, a case which will likely produce the first major Second
Amendment decision in more than a decade.
57
Bruen is about whether a New York
law that, much like the New Jersey law at issue in Grewal, requires applicants seek-
ing an unrestricted license to carry a concealed handgun to demonstrate “proper cause”
complies with the Second Amendment.
58
The open-carry of handguns is prohibited
in New York. New York courts have interpreted the “proper cause” requirement to
mean that a person must “demonstrate a special need for self-protection distinguishable
from that of the general community or of persons engaged in the same profession.”
59
How far reaching the Court’s decision in Bruen will be remains to be seen, but
early signs suggest a willingness to move more slowly than plaintiffs would like.
60
Although plaintiffs asked the Court to resolve a broad question—“Whether the
Second Amendment allows the government to prohibit ordinary law-abiding citizens
from carrying handguns outside the home for self-defense”
61
—the Court presented
a narrower question for parties to argue: “Whether the State’s denial of petitioners’
applications for concealed-carry licenses for self-defense violated the Second
has been abandoned as a “second-class right,” compared to other fundamental rights (e.g.,
those guaranteed by the First Amendment). See Silvester v. Becerra, 138 S. Ct. 945, 952 (2018)
(Thomas, J., dissenting from denial of certiorari) (accusing lower courts and the Supreme
Court of treating the Second Amendment as a disfavored right); see also Peruta v. California,
137 S. Ct. 1995, 1999 (2017) (Thomas, J., joined by Gorsuch, J., dissenting from denial of
certiorari) (similar); Friedman v. City of Highland Park, 136 S. Ct. 447, 449 (2015) (Thomas,
J., joined by Scalia, J., dissenting from denial of certiorari) (similar). For further discussion of
the “second-class right” framing, see Gregory P. Magarian, Political and Non-Political Speech
and Guns, 28 W
M &MARY BILL RTS. J. 429, 429–30 (2019) (“To put normative meat on that
complaint’s positive bones, and following their frequent tendency to press for stronger Sec-
ond Amendment rights by simple analogies to the First Amendment, gun rights advocates
make the specific claim that courts improperly enforce the First Amendment’s protections
of free expression more vigorously than the Second Amendment’s protection of the right to
keep and bear arms.”) and Timothy Zick, The Second Amendment as a Fundamental Right,
46 H
ASTINGS CONST. L.Q. 621 (2019).
57
New York State Rifle & Pistol Ass’n., Inc. v. Bruen, 141 S. Ct. 2566, No. 20-843 (cert.
granted Apr. 26, 2021).
58
New York State Rifle & Pistol Ass’n., Inc. v. Beach, 818 F. App’x 99 (2d Cir. 2020)
(unpublished), cert. granted in part sub nom. New York State Rifle & Pistol Ass’n., Inc. v.
Corlett, 141 S. Ct. 2566 (2021); Grewal, 140 S. Ct. at 1865.
59
In re Klenosky v. N.Y. City Police Dep’t, 75 A.D.2d 793, 793 (N.Y. App. Div. 1980).
60
Early signs from oral argument suggest that the Court is ready to extend the right to keep
and bear arms outside the home. See, e.g., Amy Howe, Majority of Court Appears Dubious
of New York Gun-Control Law, But Justices Mull Narrow Ruling, SCOTUS
BLOG (Nov. 3,
2021, 1:43 PM), https://www.scotusblog.com/2021/11/majority-of-court-appears-dubious-of
-new-york-gun-control-law-but-justices-mull-narrow-ruling/ [https://perma.cc/Q2KF-MRCU].
61
Petition for Writ of Certiorari, Bruen, at I (2020) (No. 20-843).
934 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
Amendment.”
62
Even if the Court recognizes a Second Amendment right to carry in
public, its ruling is unlikely to disturb the bedrock principle that the right to bear
arms for self-defense is strongest in the home, and public understandings of the First
Amendment will continue to evolve with respect to guns alongside understandings
of the Second.
B. First Amendment Expansionism
Unlike its constitutional neighbor, the First Amendment’s protection is most
acute in the public. And unlike the Second Amendment, First Amendment jurispru-
dence is currently undergoing significant and dynamic doctrinal growth. Therefore
it is, in many ways, better suited to challenging public carry gun-control laws.
As a doctrinal and theoretical matter, the right to freedom of speech guaranteed
by the First Amendment is a public-facing one. The Court famously maintained that
“[w]herever the title of streets and parks may rest, they have immemorially been held
in trust for the use of the public and, time out of mind, have been used for purposes
of assembly, communicating thoughts between citizens, and discussing public ques-
tions.”
63
And regardless of a person’s preferred theory of the First Amendment, it is
undeniable that courts, in interpreting and applying the First Amendment, are guided
by the value of democratic self-governance. From the very beginning, the First Amend-
ment has been understood to protect freedom of expression in order to safeguard the
capacity of persons to participate in the formation “of that public opinion which is
the final source of government in a democratic state.”
64
The First Amendment is currently undergoing dramatic transformation. Once a
shield for progressive activists, the First Amendment has been covertly co-opted by
the legal right as a deregulatory tool to constitutionalize large swaths of social life
and limit state power.
65
Key to this strategy has been the expansion of First Amend-
ment coverage—that is, the expansion of what kinds of activity constitute “speech”
for constitutional purposes. Plaintiffs have sought to expand the scope of the First
Amendment in order to contract the scope of the administrative state by bringing
claims about the regulation of types of activities that historically no one believed
implicated the First Amendment at all—from laws requiring business licenses,
66
to
62
No. 20-843, SUP.CT.U.S., https://www.supremecourt.gov/search.aspx?filename=/docket
/docketfiles/html/public/20-843.html [https://perma.cc/34TV-U46E] (presenting the question
in a docket entry dated Apr. 26, 2021).
63
Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939).
64
Masses Pub. Co. v. Patten, 244 F. 535 (S.D.N.Y.), rev’d, 246 F. 24 (2d Cir. 1917)
(emphasis added).
65
Adam Liptak, How Conservatives Weaponized the First Amendment, N.Y.TIMES (June 30,
2018), https://www.nytimes.com/2018/06/30/us/politics/first-amendment-conservatives-su
preme-court.html [https://perma.cc/KP32-SCNR].
66
See, e.g., Edwards v. District of Columbia, 755 F.3d 996 (D.C. Cir. 2014).
2022] THE FIRST AMENDMENT WEAPONIZED 935
the regulation of offers,
67
credit card fees,
68
the labeling of foodstuffs,
69
the treatment
of customers
70
and professional practices,
71
to minimum wage laws,
72
among others.
Leslie Kendrick has argued that given the significant protection afforded to speech
covered by the First Amendment, this recent phenomenon, which she calls “First
Amendment expansionism,” makes a lot of sense: “As constitutional rights go, the
First Amendment speech right provides an unusually robust amount of protection
for activities that fall within its ambit. If a litigant can squeeze her claims under the
First Amendment umbrella, the rewards are great.”
73
These trends can help make sense of why plaintiffs have continued to bring First
Amendment challenges against open-carry laws. They also explain why these chal-
lenges deserve further attention. First Amendment expansionism has only just begun.
Given the importance of gun rights in constitutional culture and the contemporary
conservative movements—and a Second Amendment long stuck in limbo—the in-
centives to leverage the First Amendment to protect the bearing of firearms outside
the home are great. The remainder of this Article discusses these challenges in-depth.
II. I
S OPEN CARRY SPEECH?GUNS AND FIRST AMENDMENT COVERAGE
A. A Survey of Existing Challenges
First, an account of the case law. Section A surveys nine First Amendment chal-
lenges to various gun-control regulations. These challenges have appeared in both
state and federal court. All but one
74
are post-Heller cases decided in the past decade.
The gun-control measures at issue regulate a variety of public spaces where plaintiffs
67
See Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003).
68
See Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144, 1146–47 (2017).
69
See, e.g., Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014) (en banc);
Int’l Dairy Foods Ass’n v. Amestoy, 92 F.3d 67, 69 (2d Cir. 1996) (granting preliminary in-
junction on First Amendment grounds against a Vermont law requiring labeling of milk from
cows treated with synthetic growth hormone); Monster Beverage Corp. v. Herrera, No. EDCV
13-00786-VAP, 2013 WL 4573959, at *12 (C.D. Cal. Aug. 22, 2013) (denying motion to dis-
miss First Amendment challenges to City Attorney’s labeling demands for highly caffeinated
energy drinks).
70
See, e.g., Conn. Bar Ass’n v. United States, 620 F.3d 81, 91–102 (2d Cir. 2010)
(rejecting First Amendment challenge to Bankruptcy Abuse Prevention and Consumer Protec-
tion Act’s requirements that debt relief agencies provide bankruptcy clients with certain
disclosures and written contracts).
71
See, e.g., Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014); Planned Parenthood v.
Rounds, 530 F.3d 724 (8th Cir. 2008).
72
Int’l Franchise Ass’n v. City of Seattle, 803 F.3d 389 (9th Cir. 2015).
73
Leslie Kendrick, First Amendment Expansionism, 56 WM.&MARY L. REV. 1199,
1209 (2015).
74
Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003).
936 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
carried guns: public sidewalks,
75
county fairgrounds,
76
shopping malls,
77
and a pool
hall.
78
These plaintiffs challenged a wide range of gun-control measures on First
Amendment grounds. Five of the nine cases involve First Amendment challenges
to police stops conducted in response to emergency calls from alarmed bystanders
who encountered public gun bearers.
79
The other gun-control measures challenged
are diverse:
• Virginia Governor Ralph Northam’s Executive Order declaring that “no
weapons, including firearms, may be carried or possessed on any land,
real property, or improvements” within the Capitol area.
80
• A local ordinance that provided that, “Every person who brings onto or
possesses on county property a firearm, loaded or unloaded, or ammu-
nition for a firearm is guilty of a misdemeanor.”
81
A state statute that prohibits “intentionally and knowingly display-
[ing] a deadly weapon, namely a firearm, in a public place and in
a manner calculated to alarm.”
82
• A community college policy prohibiting the wearing of empty holsters
on campus.
83
The core of the issue raised by these challenges is a matter of First Amendment
coverage—that is, whether bearing arms constitutes “speech” for First Amendment
purposes. Put another way, the issue is whether gun-control laws regulating the public
carry of guns raise a First Amendment question at all. In all nine challenges, plaintiffs
alleged that carrying guns—and in one case, wearing an empty holster—constitutes
expressive conduct, intended to convey pro–Second Amendment and open carry
messages.
84
To date, courts have uniformly rejected these challenges on grounds that
75
See Baker. v. Schwarb, 40 F. Supp. 3d 881, 881 (E.D. Mich. 2014) (discussing a sidewalk
by a public park and hospital); Deffert v. Moe, 111 F. Supp. 3d 797, 801 (W.D. Mich. 2015);
Northrup v. City of Toledo Police Div., 58 F. Supp. 3d 842, 848 (N.D. Ohio 2014).
76
Nordyke, 319 F.3d at 1187–88.
77
See Chesney v. City of Jackson, 171 F. Supp. 3d 605, 610 (E.D. Mich. 2016); Ex Parte
Poe, 491 S.W.3d 348, 351–52 (Tex. App. 2016).
78
Burgess v. Wallingford, No. 11-cv-1129, 2013 WL 4494481 (D. Conn. 2013).
79
See Chesney, 171 F. Supp. 3d at 611; Baker, 40 F. Supp. 3d at 884–85; Northrup, 58
F. Supp. 3d at 845; Burgess, 2013 WL 4494481, at *1–2; Deffert, 111 F. Supp. 3d at 801–02.
80
Declaration of a State of Emergency Due to Potential Civil Unrest at the Virginia State
Capitol, C
OMMONWEALTH VA.OFF.GOVERNOR (Jan. 15, 2020), https://www.governor.vir
ginia.gov/media/governorvirginiagov/executive-actions/EO-49-Declaration-of-a-State-Of
-Emergency-Due-to-Potential-Civil-Unrest-at-the-Virginia-State-Capitol.pdf [https://perma
.cc/3TPN-TU9F].
81
Nordyke, 319 F.3d at 1188.
82
Ex parte Poe, 491 S.W.3d at 350.
83
See generally Smith v. Tarrant Cnty. College Dist., 694 F. Supp. 2d 610 (N.D. Tex. 2010).
84
See supra notes 74–83.
2022] THE FIRST AMENDMENT WEAPONIZED 937
gun ownership and carry do not constitute expressive conduct for First Amendment
purposes, and therefore do not warrant First Amendment scrutiny.
85
In eight of the
nine cases, the court refused to extend First Amendment coverage to arms-bearing.
86
In Spence v. Washington, the Supreme Court tried to offer a general formula for
whether conduct deserved First Amendment coverage. The test asks whether the
conduct in question “was sufficiently imbued with elements of communication to
fall within the scope of the First and Fourteenth Amendments.”
87
The Court held that
conduct is entitled to First Amendment coverage where (1) there is an “intent to con-
vey a particularized message,” and (2) the surrounding circumstances give rise to a
great “likelihood . . . that the message would be understood by those who viewed it.”
88
Six courts have rejected First Amendment challenges to gun control laws on
grounds that they fail to satisfy the Spence test.
89
Put together, courts have held that
First Amendment challenges to public-carry restrictions fail both prongs of the
Spence test: open gun carriers lack the requisite intention to convey a particularized
message, and even if they did, bystanders are unlikely to understand the intended
message. The first prong is concerned with the intentions of the speaker—in this
case the gun carrier. In Nordyke v. King, for instance, the Ninth Circuit maintained
that “[t]ypically a person possessing a gun has no intent to convey a particular mes-
sage, nor is any particular message likely to be understood by those who view it.”
90
A federal district court in Ohio rejected a First Amendment challenge to a police
stop in Northrup v. City of Toledo Police Division on the same grounds: “[T]he
surrounding circumstances . . . offer no support to Northrup’s intended message. As
he notes, he simply was walking on a public sidewalk in his neighborhood with his
wife, daughter, grandchild, and dog.”
91
Faced with a similar set of facts, a Connecticut
federal district court in Burgess v. Wallingford agreed: “Carrying a weapon alone
is generally not associated with expression. . . . [R]easonable officers could disagree
regarding whether his shirt established a great likelihood that others would interpret
his weapon as a particularized message regarding the Second Amendment rather
than, for example, a weapon carried for protection.”
92
The second prong is concerned with the reaction of the listener—in this case,
bystanders.
93
Courts have consistently held that the likely reaction of audiences
faced with someone carrying a firearm in public is “alarm[] and concern[] for their
safety and that of their community.”
94
All of the challenged police stops were
85
See, e.g., Chesney, 171 F. Supp. 3d at 622.
86
See supra notes 74–83; Smith, 694 F. Supp. 2d at 610.
87
Spence v. Washington, 418 U.S. 405, 409 (1974).
88
Id. at 410–11.
89
See, e.g., Chesney, 171 F. Supp. 3d at 616–18.
90
Nordyke v. King, 319 F.3d 1185, 1190 (9th Cir. 2003).
91
Northrup v. City of Toledo Police Div., 58 F. Supp. 3d 842, 848 (N.D. Ohio 2014).
92
Burgess v. Wallingford, No. 11-cv-1129, 2013 WL 4494481, *at 9 (D. Conn. 2013).
93
Spence, 418 U.S. at 409–11.
94
Chesney, 171 F. Supp. 3d at 618; see also Deffert v. Moe, 111 F. Supp. 3d 797, 814
938 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
instigated because of the alarmed reactions of bystanders—and courts often take
note of this fact when analyzing prong two of the Spence test. In Baker v. Schwarb,
a federal district court in Michigan rejected a First Amendment challenge to a police
stop, explaining that “[b]ased 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 Plaintiffs were engaged in any [expressive activ-
ity].”
95
In Chesney v. City of Jackson, the Michigan federal district court pointed to
the “lack[] [of] evidence that anyone . . . actually perceived the message that Plaintiff
purportedly sought to convey” to reject plaintiff’s challenge.
96
There, plaintiff had
been detained by police after entering a Michigan Secretary of State branch office
in a shopping mall armed with a loaded pistol.
97
B. The Persistence of First Amendment Public Carry Challenges
If courts have uniformly rejected these challenges, then what are the stakes of
this inquiry? Two comments on this point: First, existing precedent, by relying on
the Spence test as the standard of First Amendment coverage and confining holdings
to the facts, has deliberately left the door open for future successful First Amend-
ment challenges to gun control measures. Most notably, in a passage oft-cited by
plaintiffs and never overruled, the Ninth Circuit in Nordyke maintained that “a gun
protestor burning a gun may be engaged in expressive conduct. So might a gun sup-
porter waving a gun at an anti-gun control rally. Flag waving and flag burning are
both protected expressive conduct.”
98
Citing Nordyke, the district court in Burgess
noted that “[g]un possession may, in some contexts, meet [the Spence] test and invoke
First Amendment analysis.”
99
Or consider the Texas Court of Appeals’ decision in Ex Parte Poe. There, plain-
tiff argued that a Texas brandishing law violated the First Amendment, asserting that
“the act of displaying a firearm is conduct protected by the First Amendment.”
100
Rejecting his challenge, the court of appeals merely asserted that the state law regu-
lates “the conduct of displaying a firearm in a public place in a manner calculated
to alarm”
101
—not speech. The court concluded its opinion by noting that “although
there clearly are constitutional rights to bear arms and to express oneself freely,
there is no constitutionally protected right to display a firearm in a public place in
(W.D. Mich. 2015); Baker v. Schwarb, 40 F. Supp. 3d 881, 895 (E.D. Mich. 2014); Northrup,
58 F. Supp. 3d at 846–48; Burgess, 2013 WL 4494481, at *7–9.
95
Baker, 40 F. Supp. 3d at 895.
96
Chesney, 171 F. Supp. 3d at 618.
97
Id. at 610–11.
98
Nordyke v. King, 319 F.3d 1185, 1190 (9th Cir. 2003).
99
Burgess, 2013 WL 4494481, at *7.
100
Ex Parte Poe, 491 S.W.3d 348, 351 (Tex. App. 2016).
101
Id. at 354.
2022] THE FIRST AMENDMENT WEAPONIZED 939
a manner that is calculated to alarm,”
102
seemingly implying that if Poe’s public
arms bearing had not constituted brandishing, he would have enjoyed First Amendment
protection. Indeed, in a concurring opinion, Justice Leanne Johnson emphasized that
while the provision “appears to regulate conduct rather than speech, the display of
a weapon could, in some instances, be connected to the exercise of free speech.
Expressive conduct may, in some instances, run afoul of the First Amendment, and
some statutes that prohibit such conduct may indeed be facially unconstitutional.”
103
Some courts have suggested that passing the Spence test and extending First
Amendment protection to guns is as easy as drawing a slogan onto the gun itself or
wearing a different T-shirt. The Nordyke court noted that “[w]here the symbols on
the gun (not the gun itself) convey a political message, the gun likely represents a
form of political speech itself.”
104
Holding that plaintiffs failed to meet prong two
of the Spence test, a Michigan federal district court in Deffert v. Moe pointed to the
fact that plaintiff
was neither chanting nor reciting slogans . . . nor was he carrying
any banner, sign, flag or poster advocating the right to bear arms
or open carry. His outerwear did not contain a slogan or state-
ment advocating the right to bear arms . . . and his t-shirt, while
arguably exhibiting such a slogan, was admittedly covered up.
105
Indeed, if we take the Spence test for granted, it isn’t obvious that bearing arms
should be categorically excluded from First Amendment coverage. Concealed public
carry would clearly be excluded from coverage because a concealed weapon is
unlikely to convey a message to any nearby audiences. But open carry—especially
open carry at explicitly gun rights–related political demonstrations like Lobby
Day—is another story. When protestors wandered the streets of Richmond with guns
strapped across their chest, they very plausibly satisfied the Spence test. As the Gun
Owners of America put it, “[i]t is difficult to imagine a more clear example of an
event where carrying firearms is intended to convey an unambiguous political
message.”
106
Indeed, it is hard to deny that a protestor who brings their gun to Lobby
Day intends to convey their opposition to pending gun control legislation in the
Virginia legislature. And similarly hard to deny that audiences—whether arms
102
Id. at 355 (emphasis in original).
103
Id. at 357 (Johnson, J., concurring).
104
Nordyke, 319 F.3d at 1190.
105
Deffert v. Moe, 111 F. Supp. 3d 797, 814 (W.D. Mich. 2015).
106
Complaint at 7–8, Gun Owners of America, Inc. v. Northam, No. CL20-279-4 (Va. Cir.
Ct. Jan. 16, 2020). Timothy Zick has echoed this point: “The clearest case in terms of
coverage for open carry involves a situation in which individuals openly carry firearms at
a public rally for Second Amendment rights.” Z
ICK, DYNAMIC FREE SPEECH CLAUSE, supra
note 17, at 220.
940 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
bearing protestors, state legislators, or mere bystanders caught in the scene—are
likely to understand the pro-gun rights message being conveyed (notwithstanding
reactions of fear and intimidation).
Or consider the facts of Burgess. There, the district court rejected the First
Amendment challenge of a man who was disarmed by police after walking into a
pool hall wearing a loaded handgun visible on his hip.
107
Rejecting the challenge, the
court maintained that “[c]arrying a weapon alone is generally not associated with
expression.”
108
But even if carrying a weapon alone is generally not associated with
any particular message, a more context-specific inquiry is warranted. Notably, the
man wasn’t carrying a weapon alone as the court claimed; he was also wearing a
shirt expressing support for the Second Amendment and carrying pro-gun rights
brochures.
109
It is true that audiences reacted with concern—that openly bearing
arms in the pool hall created an atmosphere of fear that prevented patrons from
enjoying their night.
110
But what does that have to do with the Spence test? The
alarm that firearms in public may incite can certainly interfere with the clear convey-
ance of a particularized message. But they need not. Pool hall patrons can be scared
and still comprehend the pro-gun rights views of the carrier.
The problem here isn’t the courts’ judgements that open carry might, under the
right circumstances, satisfy the Spence test, but rather courts’ overwhelming reliance
on the Spence test itself. As I argue in the next Section, the Spence test is a doctrinally
and theoretically unworkable test for First Amendment coverage. Transforming the
open carry of firearms into constitutionally protected speech can’t be as easy as wear-
ing a different shirt, shouting a slogan, or putting an NRA sticker on an AR-15 rifle.
Second, even as courts reject these challenges, the idea that bearing arms is
protected by the First Amendment has continued to gain traction in the public
imagination. The plaintiff in Baker, who was stopped by police after walking down
the street carrying a rifle and handgun, complained to the officer after being de-
tained, “I’m not breaking any laws, I’m just exercising my First Amendment rights
or my Second Amendment rights.”
111
In Ex Parte Poe, a number of non-profit guns-
rights organizations filed affidavits attesting to the expressive nature of open carry.
112
Terry Holcomb, the Executive Director of Texas Carry, Inc., argued that “[t]he sole
purpose of openly carrying rifles and shotguns is to express our belief that people
should be allowed to openly carry handguns. We are attempting to educate the
public not alarm them.”
113
Christopher Grisham, the president of Open Carry Texas,
maintained that openly carrying long arms is,
107
See generally Burgess v. Wallingford, No. 11-cv-1129, 2013 WL 4494481 (D. Conn.
2013).
108
Id. at *9.
109
Id. at *1.
110
Id.
111
Baker. v. Schwarb, 40 F. Supp. 3d 881, 886 (E.D. Mich. 2014).
112
Ex Parte Poe, 491 S.W.3d 348, 351 (Tex. App. 2016).
113
Id.
2022] THE FIRST AMENDMENT WEAPONIZED 941
immensely important as a [First] Amendment issue as it draws
attention and encourages dialogue on our efforts. No single
method of speech has been more successful for us than the open
display of firearms in a peaceful and respectful manner than
carrying these long arms. Signs and flags only draw attention to
the protestor, not the cause.
114
And in an op-ed, Tyler Yzaguirre, the president of the Second Amendment Institute,
urged “gun owners” to “use the First Amendment to protect open carry” exactly
because “[t]he First Amendment has historically been much more difficult to limit
than the Second.”
115
As guns in public spaces and protests become commonplace, we can expect not
only unceasing First Amendment challenges to gun control measures, but also the
growing prevalence of First Amendment claims asserted in the public by advocates
and gun owners to justify open carry—and the forging of new constitutional mean-
ings and social norms. By presenting a new framework for rejecting these claims,
this Article speaks to interlocutors inside and outside our courts. Put simply, the Article
explains at length why the First Amendment should not be construed liberally to
protect the open carry of firearms. It maps a doctrinal path that judges should take
to reject these challenges. And it provides a conceptual language for bystanders to
reassert and reclaim their rights to public safety and participation from open carriers
trying to weaponize the First Amendment.
C. A Value-Sensitive Approach to First Amendment Coverage
The first step is to abandon the Spence test as a standard for First Amendment
coverage. As Robert Post has argued, “[t]he test cannot plausibly be said to express
a sufficient condition for bringing ‘the First Amendment into play.’”
116
To illustrate
the problem, Post invokes criminal laws prohibiting the defacement of public property.
Regardless of whether a defendant spray-painted an unintelligible mess or an ex-
plicit message conveying a particularized message like “I support the Second
Amendment,” that defendant would be unable to mount a First Amendment defense;
even though the defendant’s activity could satisfy the Spence test, “no court in the
country would consider the case as raising a First Amendment question.”
117
And
114
Id.
115
Tyler Yzaguirre, Why Gun Owners Should Use the First Amendment to Protect Open
Carry, T
HE HILL (Aug. 8, 2017, 9:21 AM EDT), https://thehill.com/blogs/pundits-blog/civil
-rights/345675-why-gun-owners-should-use-the-first-amendment-to-protect-open [https://
perma.cc/L4WW-Q2DK].
116
Robert Post, Recuperating First Amendment Doctrine, 47 STAN.L.REV. 1249, 1252
(1995).
117
Id.
942 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
there are countless other expressive activities which satisfy the Spence test, but would
never present a First Amendment issue—contractual language, medical malpractice,
commercial fraud, and workplace harassment to name only a few.
On the other hand, courts have not hesitated to recognize plenty of media and
conduct which do not straightforwardly satisfy the Spence test, but nevertheless en-
joy First Amendment coverage, such as paintings, music, wearing an armband, parades,
flag burning, and flag waving. In lights of these anomalies, the Court has even ac-
knowledged that “a narrow, succinctly articulable message is not a condition of
constitutional protection.”
118
And this is generally the approach that litigants in First
Amendment gun control challenges take. They present gun carrying as a form of sym-
bolic speech, indistinguishable from waving or burning flags at political rallies.
119
The central problem with the Spence test—and with any coverage test that aims
to track “expressive conduct”—is its insensitivity to underlying First Amendment
values and the social contexts in which those values are manifest. The Spence test
“does not state a sufficient condition for bringing the First Amendment into play
because social contexts can sometimes render individual acts of communication into
events without First Amendment value.”
120
If the underlying normative basis of the
First Amendment is democratic self-governance, then the scope of First Amendment
coverage is defined by reference to those activities that fall within the domain of public
discourse. As Justice Stephen Breyer, faced with a coverage question, explained:
[The Court] can, and normally do[es], simply ask whether, or
how, a challenged statute, rule, or regulation affects an interest
that the First Amendment protects. If, for example, a challenged
government regulation negatively affects the processes through
which political discourse or public opinion is formed or expressed
(interests close to the First Amendment’s protective core), courts
normally scrutinize that regulation with great care.
121
Whether a particular speech-act falls in the domain of public discourse—and
implicates the formation of public opinion—is a context-specific sociological inquiry
into the public meaning of social practices and conventions. Questions of First
118
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995).
119
See, e.g., Yzaguirre, supra note 115 (“Open carrying a firearm is an action; it is symbolic
speech because it is a public statement. As history has shown us, actions and public state-
ments, are protected by the First Amendment under symbolic speech. Examples of this include
students in Des Moines wearing armbands to protest the Vietnam War, waving flags that may
be seen as offensive and even flag burning.”).
120
Post, Recuperating First Amendment Doctrine, supra note 116, at 1255.
121
Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144, 1152 (2017) (Breyer, J.,
concurring).
2022] THE FIRST AMENDMENT WEAPONIZED 943
Amendment coverage force judges to “chart[] and classify[] the social world in
order best to serve the constitutional value of democratic self-determination.”
122
D. Charting the Social Practice of Open Carry
1. Guns and Media for the Communication of Ideas
So not all expressive activities (with particularized messages) deserve First Amend-
ment coverage. Instead, the First Amendment protects expressive messaging con-
veyed via “media for the communication of ideas.”
123
Media for the communication
of ideas are the “organs of public opinion”
124
—they facilitate public discourse by
bringing together a speaker and an audience into a “dialogic and independent” rela-
tionship.
125
Think of newspapers, books, movies, art, or music.
126
These are media
through which the participants are self-consciously engaged in deliberation and
debate about current events and matters of public concern.
First Amendment values, then, are not attached to amorphous speech-acts, but
instead are manifest in particular social contexts that transform speech-acts into
constitutionally significant expression. There is no ready answer to the question,
“are guns as such speech?” A gun on display at a Walmart is very different from a
gun on display in a contemporary art exhibit. In a Walmart, the gun is a mere
commodity with no First Amendment value—laws regulating the sale of firearms
would likely never be subject to First Amendment scrutiny.
127
But now imagine a
law that banned the display of firearms at museum exhibitions.
128
Such a law clearly
122
Robert Post, The Constitutional Status of Commercial Speech, 48 UCLAL.REV. 1, 17
(2000).
123
See Post, Recuperating First Amendment Doctrine, supra note 116, at 1276.
124
Mutual Film Corp. v. Indust. Comm., 236 U.S. 230, 243–45 (1915).
125
Post, Recuperating First Amendment Doctrine, supra note 116, at 1254.
126
See Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 501 (1952) (granting First Amendment
protection to motion pictures because they “are a significant medium for the communication
of ideas”).
127
For a discussion of the First Amendment value (or lack thereof) of commodities, see
Robert C. Post & Jennifer E. Rothman, The First Amendment and the Right(s) of Publicity,
130 Y
ALE L.J. 86 (2020).
128
There are, in fact, art exhibitions that feature guns. Consider the 2014 art exhibition
titled “Guns in the Hands of Artists,” displaying the work of over thirty artists who used
decommissioned guns collected through a gun buyback program in New Orleans “as the raw
materials in their art . . . to express a thought, make a statement, open a discussion and stimu-
late thinking about guns in our culture.” Guns in the Hands of Artists, J
ONATHAN FERRARA
GALLERY, http://www.jonathanferraragallery.com/exhibitions/guns-in-the-hands-of-artists
[https://perma.cc/RVH4-Y5S3] (last visited Apr. 26, 2022). See also Francis X. Clines, The
N.R.A. Says, Go Ahead, Make My Fantasy, N.Y.T
IMES (Apr. 24, 2017), https://www.nytimes
.com/2017/04/24/opinion/the-nra-says-go-ahead-make-my-fantasy.html?smid=tw-share
944 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
restricts public discourse by regulating a medium for the communication of ideas—
namely, the medium of the museum exhibit. Placed in a modern art museum, guns
can be transformed from commodities with no First Amendment value into works
of art that trigger First Amendment protection.
We might start by asking, then, whether carrying guns in a public fora transforms
them from commodities into media. Another way of phrasing the question is to ask
whether laws that regulate the open carry of firearms restrict the processes of self-
governance and the formation of public opinion. Guns in public are a far cry from
the traditional forms of media that society associates with the formation of public
opinion—books, movies, and the like. Guns are not the means through which we
engage in public debate about current events. They are not organs of idea exchange.
There is no doubt that the contents of public opinion and the constitutional meanings
attached to the Second Amendment are influenced by the ways guns are regulated;
but that does not imply that the regulation of guns is itself a First Amendment
problem. First Amendment scrutiny is reserved for the regulation of media through
which the public carries on public deliberation.
129
It is clear that an AR-15 strapped
across someone’s back is not such a medium.
Far from a medium for the communication of ideas, courts have, for the most
part, coalesced around the understanding that the open carry of firearms represents
a public threat and source of intimidation. This surely reflects a prevailing public
understanding of the meaning of open carry. In Baker v. Schwarb, the Michigan
federal district court rejected the First Amendment claims of two men who had been
briefly detained by police officers after receiving “a flood of 911 calls from con-
cerned citizens” reporting men “carrying impressive looking rifles and handguns in
full view.”
130
Plaintiffs argued that their First Amendment rights “were infringed by
the officers when their walk was interrupted and they were detained for promoting
open carry.”
131
Dismissing their challenge, the federal court began its holding with
this description of open-carry practices:
[https://perma.cc/X6YD-MSXY] (describing the National Rifle Association’s National Fire-
arms Museum, including an exhibit displaying guns from film); Annie Dell’Aria, Loaded
Objects: Addressing Gun Violence Through Art in the Gallery and Beyond, 6 P
ALGRAVE
COMMC’NS 1 (2020) (surveying works of art related to gun violence to “outline moments where
contemporary art intersects with the issue of gun violence in ways that prompt dialogue and
connect the material presence and political issue of guns to other structures of violence.”);
Mexican Artist Creates Gun Orchestra, P
HAIDON, https://www.phaidon.com/agenda/art/articles
/2013/february/26/mexican-artist-creates-gun-orchestra/ [https://perma.cc/8LTF-VMHH] (last
visited Apr. 26, 2022) (describing a collection of work by Mexican artist Pedro Reyes who
transformed guns and rifles into musical instruments); The Art of London Firearms, M
ET MU-
SEUM, https://www.metmuseum.org/exhibitions/listings/2019/london-firearms [https://perma
.cc/9VCF-HVHB] (last visited Apr. 26, 2022) (describing an exhibition of British firearms).
129
See Post & Rothman, supra note 127.
130
Baker. v. Schwarb, 40 F. Supp. 3d 881, 881 (E.D. Mich. 2014).
131
Id. at 894.
2022] THE FIRST AMENDMENT WEAPONIZED 945
Out on the forested frontier, it was commonplace—and never
worrisome—to see buckskin-wearing men setting off toting their
flintlocks and hunting knives, fixin’ to bring home vittles for the
family. But, in the contemporary reality of a settled, peaceful sub-
urban environment, where most of the hunting is done between
aisle three and the frozen food section, the sight of commandos
with AK-47s marching along the highway predictably grabs the
attention of citizens and law enforcement alike.
132
Here, the court engaged directly in sociological interpretation of open carry as a social
practice and charts the social world in such a way as to leave no room for guns as
a medium for the exchange of ideas. Contrasting “the contemporary reality” with the
Wild West, the court classifies guns in public as anomalous, unusual, and dangerous.
On this interpretation, open carry is a far cry from the domain of democratic pub-
lic discourse. And this view of our social reality is undoubtably commonplace. As
one commentator put it: “The right to bear arms in political debate . . . is not the
right to persuade; it is the right to terrorize. It is not the right to participate in civil
society; it is the power to threaten to disrupt, even to destroy it.”
133
Consider the fact
that businesses are increasingly asking customers to leave their guns at home to provide
“associates and customers with a safe place to work and shop.”
134
These measures, one
public health expert noted, “begin[] to make guns seem less socially acceptable.”
135
Implicit in these understandings of guns in public is the idea that guns are not
themselves media for the communications of ideas. Rather than facilitating the for-
mation of public opinions, guns in public more often evoke reactions of fear.
136
Notice how this First Amendment coverage argument differs from a mechanical
application of the Spence test. Guns in public can be understood as posing a threat
while also satisfying the Spence test so long as the gun-carrier means to express a
particularized message that audiences are likely to understand.
137
But satisfying the
Spence test does not transform guns into a media for the communication of ideas.
These sociological accounts of open carry illustrate that gun-carriers and bystanders,
132
Id. at 884.
133
Garrett Epps, Guns Are No Mere Symbol, THE ATLANTIC (Jan. 21, 2020), https://www
.theatlantic.com/ideas/archive/2020/01/guns-are-no-mere-symbol/605239/ [https://perma.cc
/ZGM9-D8ZD].
134
Dalvin Brown, Kelly Tyko & Janna Herron, Publix, Aldi, CVS, Walgreens and Other
Businesses Want Shoppers to Leave Guns at Home, USA T
ODAY (Sep. 5, 2019), https://
www.usatoday.com/story/money/2019/09/05/open-carry-these-stores-restaurants-want-you
-not-bring-guns/2208651001/ [https://perma.cc/2FHB-KY72] (internal quotation omitted).
135
Michael Corkery, Retailers Walk Thin Lines by Asking, Not Telling, Shoppers Not to
Carry Guns, N.Y. T
IMES (Sept. 9, 2019), https://www.nytimes.com/2019/09/09/business
/walmart-guns-open-carry.html [https://perma.cc/TP4Q-24N5] (internal quotation omitted).
136
Zick, Arming Public Protests, supra note 17, at 225.
137
Supra Section II.B.
946 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
more often than not, do not stand in the “dialogic and independent” relationships
constitutive of media for the communication of ideas.
138
Carrying a gun on the street,
in a pool hall or in a mall does not transform a space into a forum for the self-
conscious deliberation of public issues.
2. Guns at Protests
Of course, the determination of whether a particular speech-act constitutes
public discourse depends on the context in which the act takes place. As the Ninth
Circuit explained in Nordyke, “the correct question is whether gun possession is
speech, not whether a gun is speech. Someone has to do something with a symbol
before it can be speech.”
139
And critical to Gun Owners of America’s argument was
the fact that the “symbolic act of bearing arms” took place at Virginia Lobby Day. Even
if guns are not media for the communication of ideas, expressive public gatherings
like protests, demonstrations, and parades definitely are. In Hurley v. Irish-American
Gay, Lesbian and Bisexual Group, for instance, the Supreme Court acknowledged
that “marches” and “expressive parades” are “mediums of expression” entitled to
First Amendment protection.
140
In so ruling, the Supreme Court acknowledged for
the first time the “tension between a focus on media for the communication of ideas”
on the one hand and “Spence’s focus on the communication of particular messages”
on the other.
141
Breaking from Spence, the Hurley Court conceded that “a narrow,
succinctly articulable message is not a condition of constitutional protection” and that
the First Amendment protects such speech-acts as “wearing an armband to protest a
war, displaying a red flag, and even ‘[m]arching, walking or parading’ in uniforms
displaying the swastika.”
142
Crucially, acts as simple as waving a flag, once intro-
duced into the context of expressive marches, are transformed into constitutionally
significant speech-acts.
Guns at protests, then, present a more complicated case. And as Second Amend-
ment commentators have observed, armed protests are an increasingly common
phenomenon. As early as 2013, Dahlia Lithwick and Christian Turner described
“[t]he alarming rise of ‘open-carry’ demonstrations,” writing that “[w]hether or not
open-carry counterdemonstrations are a good thing, they are assuredly a thing.”
143
They observed that pro-gun rights demonstrators “strap on weapons and parade
around to prove that parading around with weapons is constitutional and that they
138
Supra Section II.B.
139
Nordyke v. King, 319 F.3d 1185, 1189 (9th Cir. 2003).
140
515 U.S. 557, 569 (1995).
141
Post, Recuperating First Amendment Doctrine, supra note 116, at 1253 n.16.
142
Hurley, 515 U.S. at 569 (internal citations omitted).
143
Dahlia Lithwick & Christian Turner, It’s Not My Gun. It’s “Free Speech.”, SLATE
(Nov. 12, 2013), https://slate.com/news-and-politics/2013/11/open-carry-demonstrations-is-car
rying-a-gun-to-a-protest-protected-by-the-first-amendment.html [https://perma.cc/52RY-64MT].
2022] THE FIRST AMENDMENT WEAPONIZED 947
have a First Amendment right to say so.”
144
Since 2013, armed protesters have marched
through Charlottesville, Virginia and stormed the Capitol Building in Michigan.
145
This year alone, the Giffords Law Center has recorded over forty significant cases
of armed protests.
146
Only seven states, plus the District of Columbia, ban the open
carry of firearms at public demonstrations.
147
The fact that political demonstrations are media protected by the First Amendment
does not itself guarantee that guns carried at demonstrations are constitutionally
protected forms of public discourse. This is because speech within media for the com-
munication of ideas is presumptively public discourse.
148
And as James Weinstein
put it, “[a]lthough this presumption is a strong one, it is rebuttable.”
149
Consider two
examples: obscenity and commercial speech. Although obscenity is conventionally
broadcast via traditional media for the communication of ideas (e.g., movies, television,
webpages), it remains a category of unprotected speech.
150
Similarly, although com-
mercial speech is often transmitted via television and newspaper advertisements, the
Court has always been careful to distinguish it from the public discourse which
constitutes the core of First Amendment protection.
151
Determining whether the public discourse presumption has been defeated re-
quires an appraisal of the First Amendment values and state interests at stake. In the
case of obscenity and commercial speech, the Court determined that the speech-acts
are insufficiently related to the value of democratic self-governance to deserve full
First Amendment protection—they are so far from the kinds of speech by which we
govern ourselves that even situating them within traditional media for the communi-
cation of ideas does not warrant constitutional protection.
152
144
Id.
145
Robyn Thomas, Armed Protestors Inspire Fear, Chill Free Speech, GIFFORDS L. CTR.
(Aug. 31, 2020), https://giffords.org/lawcenter/report/armed-protesters-inspire-fear-chill-free
-speech/ [https://perma.cc/AZJ6-KM7T] (keeping a running list of notable armed protests
in 2020); Zick, Arming Public Protests, supra note 17, at 224.
146
Thomas, supra note 145.
147
Alex Yablon, The 36 States Where Local Officials Can’t Ban Guns at Protests, THE
TRACE (Sept. 11, 2017), https://www.thetrace.org/2017/09/35-states-local-officials-cant-ban
-guns-protests/ [https://perma.cc/28SG-8UHR].
148
Post & Rothman, supra note 127, at 137 (“Speech within such media is presumptively
public discourse.”).
149
James Weinstein, Participatory Democracy as the Central Value of American Free
Speech Doctrine, 97 V
A.L.REV. 491, 496 n.35 (2011).
150
See Paris Adult Theatre I v. Slaton, 413 US. 49, 69 (1973) (upholding the banning of
legally obscene films as consistent with the First Amendment); Reno v. ACLU, 521 U.S. 844,
868 (1997) (maintaining that obscenity is unprotected even when expressed via the “demo-
cratic forums of the Internet”).
151
See generally Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S.
748 (1976); Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980).
152
Weinstein, supra note 149, at 493–94.
948 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
So too for guns at protests, the presumption of public discourse is defeated.
Indeed, the case is even more compelling for denying guns at protests the status of
public discourse. Because, whereas obscenity and commercial speech are merely
unrelated to the value of participatory democracy, open carry actively contravenes
it. And importantly, their introduction into a medium for the communication of ideas
(i.e., protests) can actually amplify their undemocratic effect. As a growing number
of Second Amendment scholars have observed, First Amendment values are threat-
ened by open carry at protests and public events; guns at protests can incite fear and
intimidation, provoke and antagonize, quell dissent, halt deliberation, and chill
speech.
153
These effects suggest that bringing guns to a protest actually changes the
constitutional nature of the protest itself by nullifying the protest’s status as a me-
dium for the communication of ideas. In other words, although public protests are
conventionally organs of public opinion, armed protests are not.
III. T
HE NORMATIVE STAKES OF COVERAGE
A. Divergent Social Realities
Pointing to prevailing accounts that describe guns in public as abnormal and
threatening, I have argued that guns are not media for the communication of ideas.
But it would be naive to deny the fact that for at least a significant number of
Americans, guns are expressive symbols. For these Americans, the preceding argu-
ment is likely unpersuasive because it fails to capture their lived social reality.
154
These Americans manifestly do not view open carry as threatening, and instead as
153
See, e.g., Darrell A. H. Miller, Guns as Smut: Defending the Home-Bound Second
Amendment, 109 C
OLUM.L.REV. 1278, 1308–10 (2009).
154
Dan Kahan has long argued that making progress in the gun-control debate requires
recognizing that these debates are cultural, not merely empirical; they are about divergent
social meanings. See generally Dan M. Kahan & Donald Braman, More Statistics, Less
Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. P
A.L.REV. 1291 (2003);
see also Donald Braman & Dan M. Kahan, Overcoming the Fear of Guns, the Fear of Gun
Control, and the Fear of Cultural Politics: Constructing a Better Gun Debate, 55 E
MORY
L.J. 569, 571 (2006) (“Indeed, the meanings that guns and gun control express are sufficient
to justify most individuals’ positions on gun control independently of their beliefs about guns
and safety. It follows that the only meaningful gun control debate is one that explicitly ad-
dresses whether and how the underlying cultural visions at stake should be embodied in
American law.”); Dan M. Kahan, The Gun Control Debate: A Culture-Theory Manifesto, 60
W
ASH.&LEE L. REV. 3, 4 (2003) (arguing that empirical econometric studies “cannot resolve
the American gun debate” because “this body of work ignores what that debate is really
about: culture”); Dan M. Kahan, The Secret Ambition of Deterrence, 113 H
ARV.L.REV. 413,
451–62 (1999) (viewing the discourse between proponents and opponents of gun control as
permeated by “each side’s illiberal ambition to proclaim its cultural and moral ascendancy
through the law”).
2022] THE FIRST AMENDMENT WEAPONIZED 949
“a fundamental American freedom and an act of citizenship.”
155
As one pro-gun
commentator put it, “[y]ou feel a sense of burning conviction that you, your family,
and your community are safer and freer because you own and carry a gun.”
156
A
growing body of sociological literature confronts this fact head on, aiming to map
out frequently overlooked narrations of gun rights.
157
On this view, gun ownership and
carry are constitutive of the broader social world of “gun culture,” and are identarian
markers of being a part of the in-group.
158
For many gun-rights advocates, responding to guns in public with fear and
viewing them as threats is a totally unintelligible reaction. So unintelligible that this
fear has been pathologized in some gun-rights circles and dubbed “hoplophobia”.
159
These circles define hoplophobia as an “[i]rrational, morbid fear of guns” that “[m]ay
cause sweating, faintness, discomfort, . . . nondescript fears, more, at [the] mere
thought of guns.”
160
Proponents of “hoplophobia” naturalize the bearing of arms,
155
Jill Lepore, Battleground America, NEW YORKER (Apr. 16, 2020), https://www.new
yorker.com/magazine/2012/04/23/battleground-america [https://perma.cc/YZE3-UQR9].
Jennifer Carlson, for instance, has argued that gun carry fosters a “citizen protector ethic,”
“whereby firearms—and the willingness to use them to defend innocent life—come to
represent an affirmation of life.” Jennifer Carlson, Why So Many American Men Want to Be
the “Good Guy With a Gun”, V
OX (Mar. 24, 2018 7:43 AM EST), https://www.vox.com/the
-big-idea/2018/3/23/17156084/carry-gun-laws-parkland-culture-good-guy-gun-male-identity
[https://perma.cc/S4BM-H8BH]; see generally J
ENNIFER CARLSON, CITIZEN-PROTECTORS:
T
HE EVERYDAY POLITICS OF GUNS IN AN AGE OF DECLINE 1 (2015).
156
David French, What Critics Don’t Understand About Gun Culture, THE ATLANTIC
(Feb. 27, 2018), https://www.theatlantic.com/politics/archive/2018/02/gun-culture/554351/
[https://perma.cc/Z78K-JFVE].
157
For recent sociological discussions of the cultural meanings attached to gun ownership and
carry, see Jonathan M. Metzl, What Guns Mean: The Symbolic Lives of Firearms, 6 P
ALGRAVE
COMMC’NS 1 (2020); F. Carson Mencken & Paul Froese, Gun Culture in Action, 66 SOC.
P
ROBLEMS 3 (2019); Mugambi Jouet, Guns, Identity, and Nationhood, 5 PALGRAVE COMMC’NS
1 (2019); David Yamane, The Sociology of U.S. Gun Culture, 11 SOC.COMPASS (2017).
158
Jouet, supra note 157, at 5. As Mugambi Jouet explained,
The symbolic dimensions of the right to bear arms in America are
glaring. After all, the odds that anyone will fire a gun against a criminal
are slim. The odds that anyone will fire a gun in an insurrection against
the government are slimmer. . . . A fierce rhetorical defense of the right
to bear arms or the choice to arm oneself to the teeth are largely
symbolic acts. They reflect strong views about what guns mean based
on an underlying set of beliefs.
Id. at 4.
159
Alan Korwin, Hoplophobia: A Modern Scourge, GUNLAWS, https://www.gunlaws
.com/GunPhobia.htm [https://perma.cc/8ACQ-NUMR] (last visited Apr. 26, 2022).
160
Id.; see also John Cylc, Fearing Guns Is a Refusal to Take Responsibility For Your
Safety, T
HE FEDERALIST (Mar. 3, 2017), https://thefederalist.com/2017/03/03/afraid-guns-re
fusal-take-responsibility-safety/ [https://perma.cc/NJ5L-K6US] (“There is a fear that the media
doesn’t seem to recognize. It isn’t Islamaphobia. It isn’t homophobia. It isn’t xenophobia.
950 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
claiming that the use of guns for self-defense “is based on man’s ‘fight’ instinct.”
161
In turn, they believe that those that fear guns—so-called “hoplophobes”—“deserve
pity, and should seek treatment.”
162
The concept of “hoplophobia” might seem like
the kind of thing that gets relegated to the dark corners of the interweb. But it
recently made its way into a federal appeals court opinion. In a case involving a ban
on interstate gun sales, Fifth Circuit Judge James Ho wrote: “Law-abiding Ameri-
cans should not be conflated with dangerous criminals. Constitutional rights must
not give way to hoplophobia.”
163
First Amendment challenges to open carry restrictions raise difficult questions
about how judges should go about making judgments about First Amendment
coverage when social norms are so dramatically divergent. In these cases, judges are
faced with two diametrically opposed conceptions of social reality. Who gets to
decide whether the activity in question is speech? The listener? The speaker? On my
account, neither the listener nor the speaker gets to unilaterally decide whether a
particular speech-act deserves First Amendment coverage. Media for the communi-
cation of ideas assume an independent and self-consciously dialogic relationship
between listener and speaker. But even still, what happens when there exist some
social settings and communities wherein guns are conscious instruments of delibera-
tion from the perspective of both speakers and listeners, and some communities in
which guns are nothing but threats?
As our social realities diverge, courts must confront the normative question
underlying these controversies—namely, what kind of a world should we inhabit?
As Amanda Shanor has argued, courts refuse to extend First Amendment coverage
“when there is a common norm about the social effect of the activity or when the
court decides there should be such a norm.”
164
First Amendment doctrine both
reflects prevailing social norms and entrenches them in our constitutional law. The
relevant First Amendment question that judges must confront is not merely whether
open carry is a form of public discourse, but also whether it ought to be. In my view,
the refusal of judges to extend First Amendment coverage to open carry is best
understood as a judgment about the normative stakes at hand—even if that is never
made explicit in their decisions.
Journalists love to discuss those because they primarily generate negativity towards con-
servatives and Republicans. I am talking about an irrational fear of an inanimate object. It
is an item that will neither move on its own, nor explode or damage anything by itself. I am
talking about firearms. This irrational fear is called hoplophobia.”).
161
Cylc, supra note 160.
162
Korwin, supra note 159.
163
Mance v. Sessions, 880 F.3d 390, 405 (5th Cir. 2018) (Ho, J., dissenting in denial of
rehearing en banc).
164
Amanda Shanor, First Amendment Coverage, 93 N.Y.U. L. REV. 318, 346 (2018)
(emphasis added).
2022] THE FIRST AMENDMENT WEAPONIZED 951
B. The Stakes of Future Challenges
Our discussion about the values implicated by guns at protests is one example
of the normative conversations that judges and litigators should be having. But the
stakes of First Amendment challenges to open carry are enormous and span beyond
guns at protests. Extending First Amendment coverage to open carry implicates all
of the long-standing and commonplace regulations on the bearing of firearms out-
side the home by making them vulnerable to as-applied First Amendment scrutiny:
general bans on the open carry of firearms, prohibitions on guns at demonstrations
on public property, laws prohibiting groups of people from “marching” in public
with firearms, anti-paramilitary laws prohibiting individuals from assembling to train
with firearms, generally applicable criminal laws prohibiting the use of guns to threaten
members of the public, laws prohibiting the brandishing of firearms, laws prohibit-
ing the pointing of guns, and laws criminalizing the use of a firearm to cause fear.
165
All of these laws protect a state’s interests in public safety. But they also im-
plicate a host of other social values. Reva Siegel and Joseph Blocher have articulated
the normative stakes of open-carry regulation: “In enacting gun laws, the government
acts for a majority of citizens who believe that not only their families’ physical
safety, but their communities’ fundamental freedoms—to travel, to speak, to learn,
to pray, and to vote without fear or intimidation—are at stake.”
166
In other words,
laws regulating guns in public protect a vast array of interests beyond the preservation
of life; they foster the social conditions necessary for free and equal participation in
the demos. They preserve the public channels of self-governance. These are the
values that courts must consider—and take seriously—before extending coverage
to open gun carry.
The analysis that judges should undertake must be context- and value-sensitive.
The question is not merely whether guns are good or bad, but rather how First Amend-
ment values—and indeed, other constitutional values—are implicated by regulating
guns in particular ways in particular social settings. Laws that regulate the manner
of arms bearing seem to have a negligible effect on the carrier’s ability to express pro-
gun views in public. Laws that regulate concealed carry, for instance, do not implicate
First Amendment values at all because hidden weapons are void of public meaning.
Similarly, laws that prohibit the carrying of loaded firearms have no bearing on com-
munication and advocacy. Finally, consider laws that regulate the brandishing and
165
See generally Eric Tirschwell & Alla Lefkowitz, Prohibiting Guns at Public Demonstra-
tions: Debunking First and Second Amendment Myths After Charlottesville, 65 UCLA L.
R
EV.DISC. 172 (2018); ROBERT J. SPITZER, GUNS ACROSS AMERICA 1 (2015). For a survey
of state and federal laws regulating violence at public events and spaces, see Protests and
Public Safety: A Guide for Cities & Citizens, I
NST. FOR CONST.ADVOC.&PROT. (2020),
https://constitutionalprotestguide.org/ICAP-Protest_and_Public_Safety-Toolkit-072720.pdf
[https://perma.cc/CLP2-LT24].
166
Joseph Blocher & Reva Siegel, Why Regulate Guns?, 48 J.L. MED.ÐICS 11, 15
(2020).
952 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
pointing of firearms in ways likely to provoke fear and intimidation. It is hard to imag-
ine why pointing a firearm at someone would be essential to getting a point across,
but much easier to see how that kind of threatening conduct can chill speech.
Laws that regulate guns in particular places also implicate constitutional values
in different ways. As I have argued, laws that regulate guns at protests actively advance
First Amendment values by preserving the participatory and democratic potential
of public gatherings. Think also of laws that restrict guns in “sensitive places” like
schools, shopping centers, or polling places. These laws preserve a sense of public
safety that is a prerequisite to the free exercise of our constitutional liberties.
The result is not a categorical prohibition on the extension of First Amendment
coverage to bearing arms. We can imagine settings where firearms do operate as
organs of public opinion and facilitate public discourse (e.g., at an NRA convention
or gun shows
167
). Instead, the relevant point is that the sociological approach makes
it much harder to claim First Amendment coverage for open carry than the Spence
test because it forces judges to consider whether and how guns in public implicate
First Amendment values in different social settings.
C. The Costs of Coverage
A critic may ask: why not simply extend First Amendment coverage, but deny
protection? In other words, if the state interests served by these regulations are so
great, courts can easily decide that they satisfy First Amendment scrutiny. This ap-
proach may be especially attractive given the growing body of scholarship arguing
that the open carry of firearms at protests directly conflicts with First Amendment
values by creating an atmosphere of fear which chills speech and deliberation.
168
Putting aside the fact that it is not obvious that these regulations would survive
heightened First Amendment scrutiny, this approach is misguided because it wrongly
assumes that extending First Amendment coverage is cost-free as long as laws sur-
vive judicial scrutiny.
Judicial intervention—especially the review of commonplace and pervasive
legislation—is itself quite expensive. First, constitutionalizing large swaths of social
life risks upsetting the delicate balance between judicial review and democratic self-
governance. Extending the risk of judicial invalidation to commonplace public
safety measures upsets ordinary processes of legislative enactment. Second, judicial
intrusion into these pervasive regulations implicates Mark Tushnet’s “too much
work” principle.
169
Tushnet has argued that “[d]octrines that require ordinary judges
167
Sarah Jane Blithe & Jennifer L. Lanterman, Camouflaged Collectives: Managing Stigma
and Identity at Gun Events, 11 S
TUD.SOC.JUST. 113, 113 (2017) (analyzing “the organization
of gun collectives, places where gun owners and gun culture are accessible, to begin to under-
stand how ‘gun culture’ and ‘gun owner identities’ unfold”).
168
See, e.g., Gregory P. Magarian, Speaking Truth to Firepower: How the First Amendment
Destabilizes the Second, 91 T
EX.L.REV. 49, 95 (2012); Miller, supra note 153, at 1308–10.
169
Mark Tushnet, The Coverage/Protection Distinction in the Law of Freedom of
2022] THE FIRST AMENDMENT WEAPONIZED 953
do too much work to reach obvious results ought to be avoided because too often
ordinary judges will make mistakes . . . as they try to implement the complex doctrines
step by step.”
170
In other words, there are error costs associated with lower court
judges having to work through the quagmire of First Amendment protection doctrine
to uphold commonplace gun control laws. And finally, overextension of First Amend-
ment coverage risks losing sight of core First Amendment values and diluting the
protection of public deliberation. As Post put it, “[t]o key heightened First Amendment
scrutiny to the expressive properties of human action is thus to risk stretching the First
Amendment to encompass everything, which means that it will protect nothing. And
that could deeply demoralize and endanger our precious First Amendment rights.”
171
In the realm of gun control, the absence of First Amendment coverage reflects
respect for our basic societal interests in public safety and order more generally—and
deference to legislative bodies in crafting and enforcing laws to safeguard those
interests. First Amendment expansionism implicates these interests by inserting an
additional (and seriously cumbersome) constitutional hurdle before legislative actors
exercise ordinary police powers. First Amendment challenges to open carry exem-
plify why judges must be sensitive to the normative and institutional consequences
of extending coverage. Sociological judgments about whether certain activity con-
stitutes public discourse do not merely describe the social reality one inhabits—they
also actively play a role in shaping it.
172
In other words, judges must ask themselves not only whether we currently do
carry on national debates through open gun carry, but also whether we ought to.
Courts have so far been wise to answer in the negative. Courts should continue to
deny coverage to the possession of guns—not only because guns are not organs of
public opinion, but also because doing so preserves the social norms that exclude
guns from the public forum. These norms—encoded in commonplace gun control
laws—serve important constitutional values and interests.
IV. E
XPANDING THE FRAME ON GUN RIGHTS
A. A Weaponized First Amendment Outside the Courts
So far, we have focused primarily on how judges ought to resolve claims as-
serted in courts about First Amendment protection for gun carry. But the upshot of
Speech—An Essay on Meta-Doctrine in Constitutional Law, 25 WM.&MARY BILL RTS.J.
1073, 1076 (2016).
170
Id.
171
See Robert Post, An Analysis of DOJ’s Brief in Masterpiece Cakeshop, TAKE CARE
BLOG (Oct. 18, 2017), https://takecareblog.com/blog/an-analysis-of-doj-s-brief-in-master
piece-cakeshop [https://perma.cc/TY8Z-4FAA].
172
See Robert W. Gordon, Critical Legal Histories, 36 STAN.L.REV. 57, 95 (1984) (“The
discourse of law—its categories, arguments, reasoning modes, rhetorical tropes, and pro-
cedural rituals—fits into a complex of discursive practices that together structure how people
perceive and that therefore act to reproduce or to try to change people’s social reality.”).
954 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
our discussion extends beyond the courthouse doors. Even as they fail in court, these
First Amendment challenges levied against open-carry laws illuminate the divisive
social contestation over the practice of bearing firearms in public and evolving public
understandings of constitutional rights.
Crucially, these challenges illustrate the extent to which pro-gun rights movements
transcend the jurisprudential boundaries of the Second Amendment. The pro-gun
rights social movements that have driven contemporary Second Amendment doc-
trine and public understandings are acutely aware of the mutability of constitutional
meanings.
173
As has been well-documented, decades of social-movement mobiliza-
tion and conflict helped forge popular beliefs about the right to bear arms and the
Second Amendment’s original meaning that made the Supreme Court’s eventual
decision in Heller possible.
174
But the story of the public’s understanding of guns rights did not end with Heller.
The Heller decision left unresolved questions about the status of the right to bear
arms in different pockets of life outside the home. We are now in the midst of a new
generation of guns rights claims—of which First Amendment claims are merely one
among many—that extend beyond the Second Amendment protections prescribed
by the Heller Court. As Jacob Charles put it, a focus on Second Amendment claims
ignore[s] the vast and expansive non–Second Amendment right
to keep and bear arms. If observers want to assess the strength
of gun rights in the United States today, they cannot confine the
inquiry to the formal constitutional guarantee and how state and
federal courts apply doctrine under that provision.
175
On Charles’s account, non–Second Amendment gun-rights claims exist in many
constitutional forms—in First Amendment and Fourth Amendment claims, for ex-
ample.
176
Indeed, this Article’s discussion of legal claims alleging First Amendment
173
See generally Reva B. Siegel, Dead or Alive: Originalism as Popular Constitution-
alism in Heller, 122 H
ARV.L.REV. 191 (2008).
174
Id.; see also Reva B. Siegel, Heller & Originalism’s Dead Hand—In Theory and
Practice, 56 UCLA L. R
EV. 1399, 1402 (2009) (“[W]hatever its vices, Heller does not impose
the decisions of the dead on the living. The decision arises out of a quite contemporary and
still persisting dispute about the nature and scope of our constitutional freedoms—as any
politically aware reader of the decision understands.”).
175
Jacob D. Charles, Securing Gun Rights by Statute: The Right to Keep and Bear Arms
Outside the Constitution, 120 M
ICH.L.REV. 581, 630–31 (2022); see also id. at 640 (“What
Americans have the right to do with guns today flows less from the text or judicial inter-
pretation of the Second Amendment than from the wide-ranging set of entitlements codified
in federal, state, and local statutes and regulations. This set of statutory gun rights is often
rhetorically justified in the language of constitutional rights, but it differs profoundly from
the protections the Constitution provides.”).
176
See, e.g., Northrup v. City of Toledo Police Dep’t, 785 F.3d 1128, 1133 (6th Cir. 2015)
2022] THE FIRST AMENDMENT WEAPONIZED 955
coverage of public carry is far from exhaustive of what we might call “First Amend-
ment Firearm Law” more generally. A growing body of lawsuits and commentary
has begun to address a wide array of gun control–related controversies that implicate
First Amendment rights. These controversies include whether the First Amendment
bars the government from prohibiting or regulating dissemination the online dis-
tribution of 3D firearms code;
177
whether it bars schools from banning depictions
of firearms on student clothing,
178
and whether it bars local and state governments
from cutting off ties with government contractors and vendors associated with the
NRA.
179
But as Charles points out, non–Second Amendment gun-rights claims also exist,
in large part, in statutory form. That is, the right to bear arms enjoys protection not
only in the Constitution, but in federal and state laws that guarantee gun rights in
“public, private, educational, governmental, commercial” settings among others.
180
These statutory protections give life to the right to bear arms in our small-c constitu-
tional order.
181
The debate about First Amendment protection of armed gatherings, Charles
observes, “illustrates the ways that the trend in robust statutory rights to carry in public
interacts with and influences constitutional doctrine. Debates about the expressive
act of gun carrying are now relevant in ways they would not have been in a world
without extensive statutory gun rights.”
182
And, as an addendum, nor would these
(“While open-carry laws may put police officers (and some motorcyclists) in awkward situa-
tions from time to time, the Ohio legislature has decided its citizens may be entrusted with
firearms on public streets. The Toledo Police Department has no authority to disregard this
decision—not to mention the protections of the Fourth Amendment—by detaining every
‘gunman’ who lawfully possesses a firearm.” (citation omitted)).
177
See, e.g., Barton Lee, Where Gutenberg Meets Guns: The Liberator, 3D-Printed Weapons,
and the First Amendment, 92 N.C. L. R
EV. 1393 (2013); Anthony M. Masero, I Came, ITAR,
I Conquered: The International Traffic in Arms Regulations, 3D-Printed Firearms, and the
First Amendment, 55 B.C.L. R
EV. 1291 (2014); Josh Blackman, The 1st Amendment, 2nd
Amendment, and 3D Printed Guns, 81 T
ENN.L.REV. 479 (2013).
178
See Schoenecker v. Koopman, 349 F. Supp. 3d 745 (E.D. Wis. 2008); N.J. ex rel. Jacob
v. Sonnabend, No. 20-C-227 (E.D. Wis. May 3, 2021); Jake Charles, Litigation Highlight:
Guns & Speech, D
UKE CTR.FIREARMS L. (May 7, 2021), https://firearmslaw.duke.edu
/2021/05/litigation-highlight-guns-speech/ [https://perma.cc/2K3W-LV3K].
179
See David Cole, New York State Can’t Be Allowed to Stifle the NRA’s Political Speech,
ACLU (Aug. 24, 2018), https://www.aclu.org/blog/free-speech/new-york-state-cant-be-al
lowed-stifle-nras-political-speech; Jacob Sullum, Lawsuit Argues that San Francisco’s Anti-
NRA Resolution Violates the First Amendment, R
EASON (Sept. 10, 2019 1:30 PM), https://
reason.com/2019/09/10/lawsuit-argues-that-san-franciscos-anti-nra-resolution-violates-the
-first-amendment/ [https://perma.cc/ULZ3-25JF].
180
Charles, supra note 175, at 56.
181
Id. For an account of small-c constitutionalism, see Richard A. Primus, Unbundling
Constitutionality, 80 U. C
HI.L.REV. 1079, 1082 (2013).
182
Charles, supra note 175, at 63.
956 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
debates be relevant in a world without an increasingly deregulatory public and
judicial understanding of First Amendment protection. As this Article has aimed to
show, it is this unique convergence of trends in judicial and nonjudicial understand-
ings of both the First and Second Amendments that has given rise to an interest in
gun carry as a free speech right.
Once we consider these First Amendment challenges to gun control measures
and look beyond their lack of judicial success, we can begin to see how popular
beliefs about the right to bear arms are gradually evolving to incorporate First
Amendment values.
Consider a recent example: Weeks before the 2020 general election, Michigan
Secretary of State Jocelyn Benson banned the open carry of firearms at polling loca-
tions, clerk’s offices, and absentee voter counting boards on Election Day.
183
Benson
argued that the Election Day gun ban was necessary to prevent voter intimidation
and facilitate the free exercise of the fundamental right to vote.
184
In response, Tom
Lambert, the president of the pro-gun rights organization Michigan Open Carry,
argued that Benson’s directive violated the First Amendment because guns at pol-
ling places constituted core political speech: “I think she’s crazy if she thinks this
is going to hold up in court. . . . It’s clearly an affront to otherwise protected political
speech, and as the Supreme Court has held numerous times, political speech is at the
core of the First Amendment.”
185
Lambert never formally raised a First Amendment challenge in court. Instead,
Lambert and Michigan Open Carry became named plaintiffs in a lawsuit challenging
Benson’s directive solely on grounds that it violated Michigan’s Administrative Pro-
cedure Act.
186
Yet, even without formally advancing a First Amendment challenge
to the temporary gun ban, the complaint spoke in the technical language of First
Amendment jurisprudence, suggesting that a gun ban at polling locations constitutes
unconstitutional “viewpoint” discrimination:
Plaintiffs in this case include individuals and firearm rights
organizations that represent many thousands of members who
183
Dave Boucher, Michigan to Ban Open Carry of Guns at Polling Places, Other Spots
on Election Day, D
ETROIT FREE PRESS (Oct. 6, 2020), https://www.usatoday.com/story
/news/politics/elections/2020/10/16/michigan-ban-open-carry-guns-polls-jocelyn-benson
-says/3687022001/ [https://perma.cc/77KJ-GN9T].
184
Beth LeBlanc, Gun Groups Sue to Stop Secretary of State Benson’s Open Carry Ban
at Polling Places, D
ETROIT NEWS (Oct. 23, 2020), https://www.detroitnews.com/story/news
/local/michigan/2020/10/23/open-carry-ban-gun-groups-lawsuit-sos-benson/5997584002/
[https://perma.cc/K9TH-SVA3].
185
Rick Pluta, Benson Says Open Carry of Guns Will Be Banned at Polling Places, MICH.
R
ADIO (Oct. 16, 2020), https://www.michiganradio.org/post/benson-says-open-carry-guns
-will-be-banned-polling-places [https://perma.cc/X38J-KQDG].
186
Complaint for Declaratory and Emergency Injunctive Relief, Lambert v. Benson, No.
20-000208-MM (Mich. Ct. Cl. 2020).
2022] THE FIRST AMENDMENT WEAPONIZED 957
choose to openly carry firearms into polling places on Election
Day as a means of pronouncing their viewpoint on the Second
Amendment. . . . [I]t is . . . common practice for open carrier to
vote and affix an ‘I Voted’ sticker on their holster at the polling
place. The open carrier then takes a picture of their stickered
holstered pistol and posts the pictures on social media as a form
of political expression and viewpoint-based speech.
187
It is worth pointing out that a First Amendment viewpoint-discrimination challenge
against Michigan’s temporary gun ban at polling locations was unlikely to succeed.
Viewpoint discrimination is an “egregious form of content discrimination” in which
the government regulates speech based on “the specific motivating ideology or the
opinion or perspective of the speaker.”
188
Far from censoring a specific viewpoint,
Michigan’s ban on guns at polling places was a content neutral and generally ap-
plicable law.
Lambert’s asserted viewpoint-discrimination claim masks an alternative poten-
tial First Amendment problem. Given the political significance of carrying guns at
polling locations, Lambert may have been questioning Secretary Benson’s motives.
Established First Amendment case law is concerned with both the content and motive
of government regulation. Even if a statute does not regulate a recognized medium
for the communication of ideas, First Amendment scrutiny may still be triggered if
the statute was enacted for impermissible purposes—or as Justice Scalia put it,
“Where the government prohibits conduct precisely because of its communicative
attributes, we hold the regulation unconstitutional.”
189
Here, then, we might interpret Lambert’s comments as suggesting that the pur-
pose of Secretary Benson’s directive was to silence voters’ views about the Second
Amendment—an inappropriate purpose that would trigger First Amendment scrutiny.
But in this case, there is no reason to believe that the temporary gun ban was enacted
with the purpose of silencing gun-rights advocacy. Still, Lambert’s asserted claims
are important because they are suggestive of the forms that First Amendment chal-
lenges to gun regulation may take in future controversies.
Crucially, by looking beyond the frame of formal First Amendment challenges
to gun control measures in courts, it is possible to begin to understand the political
and rhetorical significance of these claims for the public’s understanding of carrying
guns as a social practice. These First Amendment claims seek not only judicial rec-
ognition, but public recognition that would transform guns into an ordinary part of
democratic deliberation and public-opinion formation. That is, beyond forging new
187
Id. at 6.
188
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).
189
Barnes v. Glen Theatre, Inc., 501 U.S. 560, 577 (1991) (Scalia, J., concurring) (emphasis
omitted); see also Post, Recuperating First Amendment Doctrine, supra note 116, at 1255
(explaining how bad purposes can trigger First Amendment scrutiny).
958 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
jurisprudential understandings of the First and Second Amendments, the gun-rights
movement actively attempts to construct new social norms and realities in which
guns are symbols, not weapons.
One commentator, reacting to a string of armed protests against Michigan
pandemic-related stay-at-home orders, observed that
[a]ccepting the open display of firearms at rallies means we must
also admit this confirms a significant cultural shift that collides
with norms and current laws. The protesters that stormed the
statehouse in Michigan were within their right to carry guns
inside the state Capitol under open-carry laws. But their actions
were far outside of the comfort zone for many people who work
in that building and who dedicate their lives to finding civil
solutions to disagreements.
190
As gun rights advocates continue to carry guns to protests, shopping malls, Walmarts,
and Starbucks, it becomes increasingly clear that their aim is precisely to transform
our comfort zones to accept public firearms—and, in turn, transform guns into every-
day organs of public opinion. As these social realities change, gun rights advocates
will likely find support from more than just the Second Amendment. The day when
waving guns at protests becomes as ubiquitous as waving flags is the day open carry
may enjoy First Amendment coverage. And when that day comes, the First Amend-
ment will truly have been weaponized.
B. Reclaiming the Values of Democratic Participation and Self-Governance
Part III called for judges to invoke the normative stakes of gun control to reject
these First Amendment challenges. But perhaps more important are nonjudicial
actors’ efforts to reclaim and protect public spaces from those who seek to transform
guns into ordinary fixtures of our political discourse. Public understandings of con-
stitutional values—and their relationship to gun rights—can themselves change the
legal landscape of gun regulation. Advocates for gun control measures should flip
the script on these First Amendment claims and forcefully articulate the ways that
guns in public spaces threaten the free and equal exercise of constitutional rights to
free, assembly, and political participation more broadly. Advocates should emphasize
that gun control measures are designed to do more than preserve our physical
safety—they are preservative of the basic channels of democratic deliberation and
self-governance.
190
Michele L. Norris, We Cannot Allow the Normalization of Firearms at Protests to
Continue, W
ASH.POST (May 6, 2020 5:23 PM EST), https://www.washingtonpost.com/opin
ions/firearms-at-protests-have-become-normalized-that-isnt-okay/2020/05/06/19b9354e-8fc9
-11ea-a0bc-4e9ad4866d21_story.html [https://perma.cc/GXA2-23C7] (emphasis added).
2022] THE FIRST AMENDMENT WEAPONIZED 959
Recent events have brought these claims to the fore. The violent takeover of the
U.S. Capitol on January 6 and a string of armed riots at state capitol buildings in
recent months are gross indicators of the havoc that armed mobilization can wreak
on our most basic institutions of democratic governance.
191
Reflecting on the Capitol
riots, Blocher and Siegel have pointed out that “[w]eapons caught in this cycle no
longer threaten individual lives only, if they ever did. Gun regulation becomes a
defense of the body politic.”
192
This insight—that gun regulation can be preservative of the democratic processes
that underlie the First Amendment (and our constitutional order more generally)—
has motivated a series of new proposals to regulate guns in state capitol buildings.
Six days after the Capitol riots, the Michigan Capitol Commission unanimously
banned the open carry of firearms in the Michigan State Capitol Building.
193
The
proposal emerged after, months earlier, armed protestors swarmed the Michigan
Senate gallery during legislative proceedings about COVID19-related restrictions.
Calling for gun restrictions in the Capitol, Michigan State Rep. Sarah Anthony urged
the Commission to “safeguard Michiganders’ constitutionally protected rights to
speak, assemble and petition the government and protect legislators, staff and the
general public from armed intimidation.”
194
191
For a visual account of the storming of the U.S. Capitol, see Hank Gilman, War on
Democracy: The Capitol Riot, in Pictures, N
EWSWEEK (Jan. 14, 2021), https://www.news
week.com/2021/01/22/war-democracy-capitol-riot-pictures-1561392.html [https://perma.cc
/3Z9E-H43X]. See also Cassidy McDonald, Handguns, Crowbars, Tasers and Tomahawk
Axes: Dozens of Capitol Rioters Wielded “Deadly or Dangerous” Weapons, Prosecutors Say,
CBS N
EWS (May 27, 2021), https://www.cbsnews.com/news/capitol-riot-weapons-deadly
-dangerous/ [https://perma.cc/U799-KSDH] (reporting that at least three rioters are facing
federal firearm charges in connection with the January 6th attack).
In the days following the Capitol riots, the American Civil Liberties Union (ACLU)
publicly rejected claims that the First Amendment protects armed demonstration. Louise
Melling & David Cole, What Does the ACLU Say About the Right to March While Armed?,
ACLU (Jan. 15, 2021), https://www.aclu.org/news/free-speech/what-does-the-aclu-say-about
-the-right-to-march-while-armed [https://perma.cc/7UCE-FAEL] (“[W]hat happened at the
Capitol on Jan. 6 was not a protest, but a violent insurrection that left five dead and many
more injured and endangered. Violence, true threats, and incitement have no place in the
exchange of ideas and are not protected by the First Amendment. . . . Our right to speech is
about words, not weapons.”).
192
Joseph Blocher & Reva B. Siegel, When Guns Threaten the Public Sphere: A New
Account of Public Safety Regulation Under Heller, 115 N
W.U.L.REV. 139, 146 (2021); see
also John Feinblatt, With Armed Protests Planned After D.C. Attack, Ban Open Carry of Guns
at State Capitols, USA T
ODAY (Jan. 15, 2021), https://www.usatoday.com/story/opinion
/2021/01/15/ban-guns-state-capitols-intimidation-not-free-speech-column/4158330001/
[https://perma.cc/6U8K-MNHT] (“America’s political conversation should not be held at the
barrel of a gun. We should be able to talk to each other without fearing for our lives.”).
193
Adam Brewster, Michigan State Capitol Bans Open Carry of Firearms Inside Building,
CBSN
EWS (Jan. 12, 2021), https://www.cbsnews.com/news/michigan-state-capitol-firearm
-open-carry-ban/ [https://perma.cc/QGN7-RJ9B].
194
Samantha May, Michigan House Democrats Push to Prohibit Guns at the Capitol After
960 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:925
In February, the Washington State Senate voted to approve a bill banning the
open carry of firearms on State Capitol grounds and at public demonstrations.
Legislative debate over the measure made heavy reference to the underlying consti-
tutional values at stake.
195
The prime sponsor of the bill, Democratic state Senator
Patty Kuderer argued that there is no “practical purpose for carrying a deadly weapon
at public demonstrations or here at the Capitol” other than “to intimidate people who
are exercising their First Amendment Rights.”
196
Republican state Senator Keith
Wagoner responded that “I find this bill, and I think my constituents find this bill,
rather intimidating[.] . . . It restricts their rights directly, a right to open carry, and
secondarily a right of freedom of expression.”
197
Both sides, then, claimed fidelity
to the First Amendment.
These state legislators model a path forward. The point is that proponents of gun
control measures should not cede constitutional ground to gun-rights advocates in
the court of public opinion. Gun control laws should not be understood primarily as
restrictions on constitutional rights, but rather as protective of our constitutional
rights to freedom of speech—and necessary for the ordinary operation of our basic
channels of democratic government. In other words, these state laws restricting guns
on Capitol grounds and at public demonstrations are statutory guarantors of our First
Amendment rights. They are not merely constitutionally permissible, but constitu-
tionally prescribed.
C
ONCLUSION
Background conditions of extreme political polarization have been ever present
in our discussion of First Amendment claims for and against gun rights. As sug-
gested, these First Amendment challenges highlight two divergent social realities
and experiences of guns in public spaces. On one account, guns are symbols of cul-
tural and political identity—they are experienced as ordinary and educative fixtures
Protests, WWMT (May 8, 2020), https://wwmt.com/news/state/michigan-house-democrats
-push-to-prohibit-guns-at-the-capitol-after-protests [https://perma.cc/2VJG-6NWE].
195
See Joseph O’Sullivan, Washington Senate Approves Ban of Open Carry of Guns at
Protests Statewide, S
EATTLE TIMES (Feb. 25, 2021), https://www.seattletimes.com/seattle
-news/politics/washington-senate-approves-ban-of-open-carry-of-guns-at-protests-statewide
[https://perma.cc/P8VK-SEZS] (“Much of Thursday’s debate focused on the tension between
the First Amendment’s right to free speech and assembly and the Second Amendment’s right
to bear arms. ‘We know that neither the First nor the Second Amendment is absolute, we
know that there have been restrictions, reasonable restrictions placed on each of them,’ said
Sen. Patty Kuderer, D-Bellevue and sponsor of the bill. ‘This is just another one.’”).
196
Austin Jenkins, Washington Senate Votes to Ban Open Carry of Firearms at Capitol
and at Demonstrations, KUOW: NPR (Feb. 25, 2021, 6:28 PM), https://www.kuow.org
/stories/washington-senate-votes-to-ban-open-carry-of-firearms-at-capitol-and-at-demonstra
tions [https://perma.cc/XSC9-WHKU].
197
Id.
2022] THE FIRST AMENDMENT WEAPONIZED 961
of political demonstration and deliberation. And on the other account, guns are life-
threatening weapons—they are experienced as terrifying, unusual, and speech-chilling.
These disagreements cannot be resolved via argument about which view of guns
bearing is a more accurate or representative account of the world we live in. Rather,
divergent accounts of public carry should be contested in reference to the constitu-
tional values at stake. These disagreements should be understood as disagreements
about the kind of world we want to inhabit, and the kind of constitutional democracy
we want to embrace. Is it a constitutional democracy in which guns are common-
place at protests? In statehouses? As public and judicial understandings of the right
to bear arms and the right to free speech grow more expansive and move toward
deregulation, it is incumbent on proponents of gun control to articulate a competing
ideal of constitutional democracy that safeguards Americans’ ability to freely and
safely participate in the project of self-governance—and the instrumental role that
gun laws play in preserving that ideal.
