The Volokh Conspiracy
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The Second Amendment at Protests and Demonstrations
There's been some debate recently about whether laws banning carrying weapons at political protests and demonstrations (either by the protests and demonstrators or others) are consistent with the Second Amendment. I thought I'd pass along what federal appellate judges have said about this recently.
[1.] From the Fourth Circuit just ten days ago in Kipke v. Moore, in a majority opinion by Judge Roger Gregory, joined by Chief Judge Albert Diaz:
Under Maryland law, a "person may not have a firearm in the person's possession or on or about the person at a demonstration in a public place or in a vehicle that is within 1,000 feet of a demonstration in a public place after: (i) the person has been advised by a law enforcement officer that a demonstration is occurring at the public place; and (ii) the person has been ordered by the law enforcement officer to leave the area of the demonstration until the person disposes of the firearm." … [W]e hold that Maryland's prohibition on carrying guns near public demonstrations is consistent with our national historical tradition of promoting peaceful assemblies, particularly given the interaction between the rights the First and Second Amendments preserve.
To start, the First Amendment protects "the right of the people peaceably to assemble." By including the "peaceably" caveat, the Founders made clear that not all assemblies are lawful, and that the government may constitutionally disperse assemblies that threaten the public peace. As the Supreme Court explained, "violence has no sanctuary in the First Amendment, and the use of weapons, gunpowder, and gasoline may not constitutionally masquerade under the guise of 'advocacy.'" So, we must read the right to bear arms in conjunction with the First Amendment's protection of the right to peaceably assemble. Though the right to bear arms surely is "not a second-class right," neither are the rights to free speech and free assembly.
Second, our history, both before and after the ratification of the Second Amendment, demonstrates a long-standing tradition of government regulating permissible assembles, including regulating arms at public assemblies. Beginning with the reign of King Edward IV in the fifteenth century, and subject to only minor alterations, "[t]he riotous assembling of twelve persons, or more, and not dispersing upon proclamation," was a criminal offense under English law up until the Revolution. As Blackstone concluded, "our ancient law … seems pretty well to have guarded against any violent breach of the public peace; especially as any riotous assembly on a public or general account …." The American colonies built on this tradition, enacting unlawful assembly statutes that ordered dispersal of assemblies, particularly where individuals were armed with weapons.
So, evidence from the time of the Founding demonstrates that the Founders had a tradition of limiting and carefully scrutinizing any threats of violence at public assemblies and saw the presence of weapons as a greater threat to the public peace than unarmed assemblies. Justices of the Peace were entrusted with broad authority to arrest groups of citizens who threatened the peace. One action that was considered to threaten that peace was to show armor—in other words, showing an intention, or "at least an apparent tendency," to engage in violence. As states enacted statutes codifying this tradition, they lowered the number of individuals necessary to constitute a riot if those individuals were armed, demonstrating an anxiety around armed assemblies. And the oft-included requirements that Justices of the Peace must first order a dispersal is akin to the Maryland provision requiring a police officer to first instruct an individual with a gun to leave before that individual can be found in violation of the statute.
Continuing into the 19th century, numerous jurisdictions, including Tennessee, Texas, Arizona, Oklahoma, and Missouri, historically prohibited carrying firearms at places of public assembly or gathering. Maryland's bans on firearms are consistent with these historical traditions.
[2.] From Judge Steven Agee's dissent in Kipke:
Maryland has not come forward with evidence that—at the Founding—States enacted measures prohibiting firearms at public demonstrations. On the contrary, the historical record reflects quite the opposite. As the district court observed, "[j]ust before the ratification of the Second Amendment, 'six out of the thirteen original colonies required their citizens to go armed when attending … public assemblies.'" Specifically, in the 150 years before the Second Amendment's enactment, American colonies up and down the Atlantic enacted laws requiring men to bring firearms with them to church and other public gatherings. For example, a 1643 Connecticut law cited the possibility of attacks as the basis for each household to "'bring a musket, pystoll or some peece, with powder and shott to e[a]ch meeting.'" And a 1642 Maryland law forbade able-bodied men from "go[ing] to church or Chappell … without [a] fixed gunn and 1 Charge at least of powder and Shott." Given that the Second Amendment codified a preexisting right, such colonial laws illuminate that our Founders would never have commonly understood that right to permit the government to prohibit carrying firearms at public demonstrations.
These specific colonial-era laws also reinforce the broader historical record from the Founding Era. Americans owned firearms and they carried those arms with them when they left home. To return to St. George Tucker's appraisal, "[i]n many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than a European fine gentleman without his sword by his side." Put bluntly, "'Americans certainly did not think that bringing guns to town was a problem'—it 'was normal.'"
The majority opinion dismisses such Founding-Era evidence based on the misguided notion that laws governing riotous assembly permit the regulation of armed assemblies. But that's a red herring—Bruen instructs courts to look to the Founding Era to determine whether a modern-day restriction is grounded in the Nation's tradition of restricting firearm carriage. As already discussed, the affray laws did not address the sort of widespread prohibitions on presence and possession of firearms contemplated by Maryland's modern prohibition. When it comes to public demonstrations and firearms, the Founding-Era record reveals: (1) no nationwide consensus of prohibiting the mere presence firearms at public gatherings, and (2) numerous examples of firearms being required at public gatherings. It's the combined effect of these two components of the historical record that compels the conclusion the Second Amendment does not permit governments to prohibit mere possession of firearms at any public demonstration.
Additional considerations bolster this conclusion. As observed elsewhere, Founding-Era required-carry laws "establish[ ] an expectation that the person next to you in the crowd is armed, thus undermining the majority's assumption that an armed person in the assembly threatens the public good." Put another way, the existence of these Founding-Era examples illuminates the falsity of the position that locations where the public gathers en masse carry a national tradition of being inherently "sensitive" such that they fall within a class of permissible firearms restrictions.
The majority's prefatory observation about the interplay of the First and Second Amendment further obfuscates the analysis. No one disputes that the First Amendment protects "the right of the people peaceably assemble," or that—consistent with the Second Amendment—a state can prohibit firearms from being used in a manner that disrupts the peace. But Maryland's law prohibits the mere presence of firearms during public demonstration under circumstances unrelated to maintaining the peace. By presuming that the mere presence of firearms somehow threatens peaceful public assembly, Maryland's law subjugates the Second Amendment right to public carriage for lawful purposes to the First Amendment right to assemble. It also ignores that restricting open carry may itself have First Amendment implications. That's precisely what the Supreme Court has cautioned against by reminding courts and legislatures that the Second Amendment is "not a second-class right."
Given the absence of Founding-Era regulations to support Maryland's broad prohibition of firearms at and near public demonstrations, the majority opinion instead cites a host of inapplicable laws as supposed analogues. None meet Bruen's exacting standards. As previously discussed, "affray" and other prohibitions on riotous or unlawful assembly targeted the manner in which arms were carried, not their mere presence or possession. The critical question for these jurisdictions was not whether an assembly was armed, but whether it constituted an "affray," i.e., a disturbance of the peace. And while a handful of states and territories dating from 1869 to 1890 enacted broader assembly-oriented provisions, as explained above, the Supreme Court deems such examples much too sparse—and from a period much too late—to substantiate proof of a nationwide understanding at the time of the Founding.
[3.] From Wolford v. Lopez (9th Cir. 2024) (opinion by Judge Susan Graber, joined by Judges Mary Schroeder and Jennifer Sung):
In the California cases, the district court held that Plaintiffs are likely to succeed in challenging California Penal Code section 26230(a)(10), which prohibits carry in:
[a] public gathering or special event conducted on property open to the public that requires the issuance of a permit from a federal, state, or local government and sidewalk or street immediately adjacent to the public gathering or special event but is not more than 1,000 feet from the event or gathering, provided this prohibition shall not apply to a licensee who must walk through a public gathering in order to access their residence, place of business, or vehicle.
Defendant does not argue that there is a national tradition of banning firearms specifically at permitted public gatherings. Instead, Defendant argues that there is a national tradition of banning firearms at public gatherings in general and, because permitted gatherings are a subset of all public gatherings, the challenged provision falls within the tradition. We agree with the district court that Plaintiffs are likely to succeed.
Public gatherings have existed since before the Founding, so Defendant must show an enduring national tradition with respect to public gatherings. As with places of worship, Defendant cannot point to a single regulation of public gatherings until after the ratification of the Fourteenth Amendment. Shortly after 1868, several States and territories prohibited the carry of firearms at public gatherings: Georgia and Texas in 1870, Missouri in 1879, Arizona in 1889, Oklahoma in 1890, and Montana in 1903. We agree with Defendant that those statutes carry some evidentiary weight, particularly because they were enacted soon after the ratification of the Fourteenth Amendment. But, as we determined with respect to places of worship, we conclude that Plaintiffs are likely to succeed because of the lack of any prohibition on the carry of firearms in public gatherings until after the ratification of the Fourteenth Amendment.
Our conclusion is buttressed in part by the Supreme Court's admonition not to interpret the "sensitive places" doctrine too broadly. See Bruen (rejecting as "far too broad[ ]" the notion that "all places of public congregation that are not isolated from law enforcement" could qualify as "sensitive"). California's law applies to all gatherings that require any governmental permit, as well as to the adjoining sidewalk or road….
In sum, because no jurisdiction had prohibited the carry of firearms at public gatherings until after the ratification of the Fourteenth Amendment, we hold that Plaintiffs are likely to succeed on their challenge to California Penal Code section 26230(a)(10).
See also opinions in Koons v. Attorney General (3d Cir. 2025), vacated, rehearing en banc granted.
