Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
To the long list of troubling developments amid the coronavirus crisis, add the Michigan state legislature’s decision to cancel its May 14 session.
The lawmakers did so as far-right opponents of Democratic Gov. Gretchen Whitmer’s lockdown policies, many armed with rifles, gathered for a possible repeat of their chaotic April 30 invasion of the state capitol.
Legally, the legislature could have done little to prevent it: Openly carrying long guns in the building is perfectly permissible under Michigan law.
North Carolina bans such displays in its legislature (and other public buildings). It also forbids carrying weapons at political demonstrations. Otherwise, though, “open carry” is generally the law.
And so one of the men in paramilitary garb who have paraded through downtown Raleigh on three occasions since May 1 armed with various weapons — including a menacing but apparently inoperable rocket-launcher — claimed he was just out getting “some exercise,” and police backed off.
Thus do right-wing extremists exploit America’s lax gun laws for political gain. Of course, the open carrying of rifles or handguns is a recipe for intimidation and potentially deadly confusion, even when not politically motivated. If shots ring out on a street full of armed pedestrians, how are the police supposed to identify the culprit?
Yet 44 states allow open carry, subject to a hodgepodge of restrictions. Michigan allows open carry in the capitol, but not casinos. Exhibiting a weapon is okay, but not “brandishing” it — except in “self-defense.”
Open carry may be benign, even necessary, in limited situations: hunters carrying their weapons home from a day’s shooting, for example.
On the whole, though, no state worthy of the name can permit exceptions to its monopoly on legitimate deployment of armed force like those in Michigan or North Carolina. Surely no sensible interpretation of the Second Amendment right to keep and bear arms would say a state must tolerate them.
The Supreme Court transformed constitutional law with its twin 2008 and 2010 rulings interpreting the amendment to protect an individual right to gun possession for self-defense.
The court has not yet clarified the full extent of this right, and on April 27 it deflected an effort by gun-rights advocates to establish a constitutional right to carry guns outside the home. The court dismissed a suit against New York City’s ban on taking licensed handguns outside the city as moot because the ban had been repealed.
Next, the court must decide whether to address a backlog of 10 gun-rights cases on its docket, including two from New Jersey and Maryland in which plaintiffs challenge laws that limit outside-the-home firearm possession to those who can demonstrate a particular need for it.
“Perhaps the single most important unresolved Second Amendment question . . . is whether the Second Amendment secures an individual right to bear arms for self-defense outside the home,” the plaintiff’s brief notes.
They have a point. If the court hears the New Jersey and Maryland cases, and invalidates the two states’ laws, it will likely affect similar regulations in 12 other states, including Hawaii.
The latter state’s law requiring a license for open-carry was struck down by a three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit in 2018 — though that ruling has not taken effect pending reconsideration by an expanded group of 9th Circuit judges.
Certainly the court could undermine bans on open carry of handguns that still do exist in jurisdictions containing 30 percent of the U.S. population — California, Florida, Illinois, New York, South Carolina and the District.
Gun-rights advocates portray themselves as heirs to the Founders, protecting individual freedom from George III-like tyranny.
Yet a parallel, equally strong, U.S. legal tradition recognizes that the Constitution is also a shield against anarchy.
In 1886, the Supreme Court upheld an Illinois law prohibiting a self-styled “Education and Defense Society” from parading with arms in Chicago, despite the German immigrant socialist group’s claims of benign intent.
“To deny the power would be to deny the right of the state . . . to suppress armed mobs bent on riot and rapine,” the court noted.
The ruling in that case, Illinois v. Presser, has never been overturned, and in his 2008 opinion for the court establishing an individual right to firearm possession, Justice Antonin Scalia disavowed any intention to do so.
In 1967, Republican then-Gov. Ronald Reagan signed California’s open-carry ban into law, in reaction to the occupation of the state capitol building by 30 armed members of the Black Panther Party.
Reagan explained he saw “no reason why on the street today a citizen should be carrying loaded weapons.”
No doubt it’s ironic that today’s conservatives should be adopting the arguments of past radicals.
The lesson is that armed political movements of any ideology can endanger democracy, and that a consistent, rational reading of the Constitution would empower states to rein them in.