Katlyn DeBoer (U.S. District Court) has posted Clash of the First and Second Amendments: Proposed Regulation of Armed Protests (Hastings Constitutional Law Quarterly, Vol. 45, No. 2, Forthcoming) on SSRN. Here is the abstract:
The United States has strayed far from its traditional use of citizen militias to demand freedom from the British and has taken a deep dive into a practice of flaunting weapons at political protests as a display of bravado to provoke fear, chill opposition, and reap media attention. The recent “Unite the Right” rally in Charlottesville, Virginia and its resulting violent pandemonium brought the issue of open carry protests to the forefront of public discourse. Armed protesters cling to their First and Second Amendment rights as shields to justify the semi-automatic firearms slung about their backs, but is this faith misplaced?
This Article argues that governmental regulations of armed protests are a necessary and constitutionally permissible avenue that state legislatures should explore. This Article analyzes the constitutionality of such regulations under both the First and the Second Amendments, and offers a proposed prohibition on armed protests that lawmakers are welcomed and encouraged to use as a starting point for much-needed legislation.
First, this Article argues that, except for very rare circumstances, open carry during a protest does not contain sufficient elements of expression to constitute symbolic speech. However, even assuming that open carry during a protest does qualify as symbolic expression to bring it under constitutional protection, regulation of that behavior is wholly consistent with the First Amendment under three different doctrinal justifications. Prohibition of armed protests is likewise consistent with the prominent sociological and theoretical understandings of the freedom of speech. Second, this Article argues that the Second Amendment offers no protection to armed protesters because the open carry of firearms during a protest is not a historical right protected by the Second Amendment. Even if the display of a firearm during a protest demonstration fell within the traditional understandings of the Second Amendment, a reasonable regulation would satisfy constitutional scrutiny.