Thursday, January 05, 2023

Open Carry of Firearms is Strong, Protected, Political, Symbolic Speech



The open carry of firearms is strong, protected, symbolic, political speech. It sends a clear, specific political message:

The power of government is limited by the Constitution.

The government is not allowed to disarm free people who are peaceable. 

Symbolic political speech is protected by the First Amendment. From

Symbolic speech consists of nonverbal, nonwritten forms of communication, such as flag burning, wearing arm bands, and burning of draft cards. It is generally protected by the First Amendment unless it causes a specific, direct threat to another individual or public order.

The simple wearing or carrying of firearms is not a direct threat to any individual or to public order. If it were, the open carry of firearms by police would be a direct threat to individuals or public order.

Pointing firearms at individual persons or even in their general direction, could be a direct threat. Holstered sidearms and slung rifles are not a direct threat.  They are an expression of political power and limited governmental power.

The Supreme Court has ruled symbolic political speech in can be limited, if very specific qualifications are met. The case was United States v. O'Brien. The qualifications are:

  • Any limitation has to be allowed by the Constitution.
  • The limitation must be necessary for an important government interest
  • The governmental interest is not related to the suppression of free speech
  •  The restriction is limited to the minimum necessary to meet the important government interest.

Open carry of firearms has been the most protected part of the right to bear arms. It is difficult to see an important government interest served by banning open carry, especially as part of demonstrations.

There are only four states which ban the open carry of firearms. They are California, New York, New Jersey, and Florida. This strongly implies there is no compelling government interest in banning the open carry of firearms.

California specifically banned the open carry of unloaded firearms, as well as loaded firearms. This strongly implies the purpose of the California ban was the suppression of strong, symbolic, political, free speech.

There is no right, in the United States, to be free from being offended or to be free from irrational fear. In an opinion piece in the Daily Montanan, there was what appears to be a case of projection. From opinion in the Daily Montanan:

Second Amendment supporters say they believe in the Constitution enough to exercise their rights by carrying a gun, but what happens when I believe in those same laws enough to trust law enforcement or believe in the peace of the country enough to be certain that there are few instances where I need a weapon?

A gun isn’t a sign of solidarity for the Second Amendment, instead it’s more of an affirmation of fear.

Who is showing they are afraid, the person who is open carrying or the person who is afraid of people who open carry?

It reminds of the joke, where a state trooper stops an older woman, and asks her if she has any weapons in her car.

She says, I have a 9mm pistol on my person.

The trooper asks: Do you have any other weapons?

She says, I have a .38 revolver in the glove box, a 12 gauge shotgun and an AR15 in the trunk of the car.

The trooper asks: what are you afraid of?

She says, absolutely nothing.

In Maryland, the editorial board of The Daily Record attempts to make the case that open carry of firearms terrorizes the population. They claim the ability to ban open carry comes from old English common law, which they mischaracterize.  The crux of the argument is: people fear the open carry of firearms, so open carry can be banned. From the

Public safety and breach of the peace are not the same as physical
harm and injury. Public safety as well as preventing physical harm must also be a goal of modern gun regulation. Such a goal helps protect the constitutional order and provides a feeling of security to citizens within their communities.

Imagine speaking ill of certain politicians at rallies attended by their heavily armed supporters. The  government’s interest in regulating the ability to carry any weapon, in any manner and for any purpose is strong, and it is needed to protect against intimidation in addition to physical harm.

The editorial board does not see the irony of politicians, surrounded by armed government agents, as possibly intimidating, when those government agents have far more legal power and protections than armed citizens who open carry.

People who are terrorized by the open carry of firearms are a tiny minority. If it were otherwise, police would be required to conceal their duty weapons. The fear expressed is not for openly carried weapons. It is a fear of ordinary citizens having political power.

The open carry of firearms is strong, protected, political, symbolic speech. It is protected by the First Amendment as much as by the Second Amendment.


 ©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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1 comment:

Anonymous said...

By law you are not required to answer the question of law enforcement without you legal council present Not answering is the exercise of free speech.