Duke Law Journal

Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations

Abstract

Armed protest has long been a tool of American political groups. Neo-Nazis, socialists, fascists, antifascists, the Black Panthers, neo-Confederates, and others have all taken up arms not necessarily to do violence, but to do politics. But such protests always risk rending a violent hole in our social fabric. If war is politics by other means, armed protests erase the distinction.

This Note argues that the Constitution’s relevant guarantees of individual rights—the First and Second Amendments—do not include a constitutional right to armed protest.

With respect to free speech, it is unlikely that current doctrine would cover armed protests. But, considering ongoing First Amendment expansion, this Note argues for a categorical exclusion of guns, and perhaps other express constitutional guarantees, from expressive conduct doctrine.

As for the Second Amendment, armed protest is not within the historically understood scope of the right to keep and bear arms. More importantly, though, Heller’s “sensitive places” exception recognizes a fundamental reality about the relationship between the First and Second Amendments: the Second Amendment must cede certain arenas—churches, government buildings, schools, theaters, protests, and the like—to the First. Instruments of violence cannot be permitted to distort outcomes in the marketplace of ideas.