Open carry demonstrations: Is carrying a gun to a protest protected by the First Amendment?

A Gun? Or Free Speech? The Strange and Alarming Rise of “Open Carry” Demonstrations.

A Gun? Or Free Speech? The Strange and Alarming Rise of “Open Carry” Demonstrations.

The law, lawyers, and the court.
Nov. 12 2013 6:28 PM

It’s Not My Gun. It’s “Free Speech.”

The alarming rise of “open-carry” demonstrations.

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Gun-toting protestors of course claim that their speech is not about preparedness to kill but about changing that cultural reading: to show that good guys (and their children!) carry guns; that seeing a gun does not mean that someone is about to be shot; that you too can carry a gun in this way; that it’s your inalienable right to do so! The problem is that carrying a gun only says all these things if it also says that the carrier is prepared to kill someone. What open carriers hope to normalize, then, what they hope we all come to accept, is that having instant access to the means to kill is not a scary thing.

To which we say: Good luck with that.

Given how many people die every year as a result of gun violence, reasonable observers can’t differentiate between the AK-47 being brandished for lethal purposes and the one being brandished to celebrate freedom and self-reliance. That’s why reasonable observers tend to feel intimidated and call the cops. Maybe we should paint all the beloved assault weapons lavender? That would go a long way toward diffusing the alarm. The members of OCT genuinely don’t see themselves as having been intimidating to the four women they followed to a restaurant. They see themselves as the victims of these four women. They are unlikely to garner a lot of support for that proposition, however. The problem one runs into, when performing Speech Acts With Semi-Automatic Weapons, is that it’s unlikely your audience will feel less threatened just because you berate them for being idiots for being afraid. Whether the open-carry folks accept it or not, assault weapons are more than just extra-large earrings.


OCT and other gun-carrying protestors tell us their purpose is not to intimidate. They don’t want us to be afraid of them. We just need to better understand what they’re trying to say. Let’s give them that. They are not like cross-burning Klansmen seeking to intimidate a class of victims. But they should give us this in return: Even if we take them at their word, people on the receiving end of a protest that uses military weapons as megaphones are intimidated. Perhaps these people labor under the misconception that guns and heated political debates don’t mix well. But perhaps they are also in reasonable fear of armed people who have arrived on the scene specifically to show passionate disapproval of their cause.

This is why even supporters of the armed protestors and their First and Second Amendment rights concede that this means of counter-protest is a mistake: “I don’t know at what point the open carrying of rifles at a counter-protest becomes ‘intimidation,’” writes Charles C. W. Cooke at the National Review Online, “but I do know that getting close to that line is not a sensible or civil thing to do and that it is unlikely to win one any friends.”

Burning crosses are undeniably intimidating symbols of abhorrent ideas. Guns are not even always symbolic. Whatever else may be said with them, guns always say, “I can kill.” And the audience always hears, “That gun can kill me with the slightest of its carrier’s effort. My life hangs entirely upon the carrier’s forbearance.” We can find that message frightening and repulsive without considering it political speech. It’s scary to place your life, and the lives of your children, in the hands of a multitude of strangers each with the power effortlessly to take it. The protestors tell us they want to talk about freedom, but we will inevitably hear the undeniable threat built into the barrel of the gun itself. Our law should say we don’t have to.

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Christian Turner is an associate professor at the University of Georgia School of Law.