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The images are harrowing: Groups of civilians, armed with military-style assault rifles, storming a state legislature and participating in protests in order to dismantle measures designed to fight an epidemic.  The President is egging them on.  To other  countries, this is pure madness and a sign of profound dysfunctionality as a small, aggressive, and  vocal minority is allowed to violate orders, such as safe distancing, installed by duly-elected leaders who have consulted with medical authorities in developing  the measures.    

Does the Second Amendment allow any individual to carry a firearm into any setting for any purpose?  Does the Constitution permit an individual to brandish a firearm (wave it in a threatening manner)?  Are guns allowed at protests? 

The Second Amendment (SA) of the US Constitution reads:

 “A well-regulated Militia, necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The SA was interpreted by the courts for over two centuries as the right to bear arms only within the context of militia service.  In 2008, the US Supreme Court in District of Columbia v. Heller ruled for the first time that individuals had the right to own an operable gun in their homes for protection.  However, writing for the majority in the 5-4 decision, Justice Antonin Scalia—a hunter and a conservative—made it clear that this right was not unlimited and that laws regulating the carrying of firearms, denying gun ownership to felons and the mentally ill, and prohibiting the carrying of dangerous and unusual weapons did not violate the Second Amendment.  The Heller majority noted that historically “commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Since Heller, an overwhelming majority of Second Amendment challenges to gun laws have been rejected by the courts.

In 1991, Warren E. Burger, the conservative chief justice of the Supreme Court, asserted that the SA “has been the subject of one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups that I have ever seen in my lifetime.”  He stated that it does not guarantee the right to private ownership.  Instead its purpose was to ensure that militias would be maintained for the defense of the state.

Michael Waldman, president of the Brennan Center for Justice and author of The Second Amendment:  A Biography, notes that the phrase “bear arms” in the 18th century referred to military activities. According to Waldman, James Madison’s notes from the Constitutional Convention did not contain a single word about an individual’s right to a gun for self-defense or recreation.   Gun laws throughout the country regulated everything from the storage of gunpowder to the carrying of weapons and courts consistently upheld these restrictions. Four times between 1876 and 1939, the U.S. Supreme Court declined to rule that the Second Amendment protected individual gun ownership outside of a militia. From 1888, when law review articles were first indexed, through 1959, every single article on the Second Amendment concluded it did not guarantee an individual right to a firearm.   

However, in recent decades, the National Rifle Association launched a campaign, including funding research promoting the narrative that the SA guaranteed a right of Americans to acquire guns outside of militia service.  This campaign has convinced most Americans that such a right exists. 

The landmark 2008 Heller ruling took the position that the SA protects a right to self-defense in the home—period.  Gun carrying in public, carrying in sensitive settings (e.g., government buildings, schools), and possession of “dangerous and unusual” weapons could still be regulated.    

Despite the views of constitutional scholars and historians, as well as the limits placed on gun rights by the Supreme Court, over the last 30 years, states have reversed historical trends by adopting right-to-carry laws and 45 allow for the open carrying of firearms. 

However, states have a number of tools to avoid the repetition of the spectacle in Michigan’s Capitol, which arguably represents a frontal attack on democracy and the rule of law.  States can set limits with regard to the manner, settings, and contexts in which guns can be carried. The most obvious thing a state can do is to prohibit open carrying of firearms in government buildings.  For example, North Carolina prohibits the carrying of firearms into government buildings and at protests.  Virginia prohibits gun carrying in certain cities, as well as places of worship, courthouses, and airport terminals.  However, 36 states either explicitly allow concealed and/or open carry at rallies, or do not forbid guns in that setting — and also preempt localities from passing their own laws to keep firearms away from rallies.

States can also prohibit the brandishing of firearms.  In Michigan, legislators felt threatened by armed civilians who stormed the State Capitol.  The intimidation ultimately forced a subsequent session to be shut down to prevent a repeat of the incident.  Michigan does have a statute that prohibits brandishing, the pointing or displaying of a firearm “in a threatening manner with the intent to induce fear in another person.”  This statute was not enforced that day.

In 14th century England, the “Statute of Northampton,” prohibited carrying pistols and daggers in public — whether “secretly” or in the “open” … “to the terror of all people professing to travel and live peaceably.”  The prohibition was adopted by the American colonies, such that, for instance, Massachusetts passed a law barring residents from going out to “ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth.”  By the mid-19th century, 17 states adopted laws against weapons carrying that resembled North Carolina’s “going armed to the terror of the public” law. Saul Cornell, a legal historian, explained that the rationale underlying such laws was a balancing of gun rights and public safety.

Jeff Welty, a Professor of Public Law and Government with the University of North Carolina, notes that “going armed to the terror of the public” laws are designed to deal with situations in which people with firearms are menacing others in public and appear to be at risk of committing crimes. The laws allow for police intervention at the sight of worrisome gun carrying, without requiring that officers wait until a shot is fired. 

It is important to realize that gun rights today are flourishing in America when compared with the past.   The carrying of concealed weapons was outlawed in 40 states by the end of the 1800s.  Research conducted by John Donohue of Stanford University shows that right-to-carry laws undermine public safety, increasing homicide rates.  Now we see individuals pushing the boundaries of these carry laws—purportedly enacted for self-defense–and intimidating members of the public and even elected leaders.    Will the political will be there to put an end to this conduct and preserve our democracy?  

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