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Conceal and Carry Restrictions Can Help Protect Freedom of Expression

A sign at the entrance of the city hall in Anchorage, Alaska, that warns handgun owners that guns are prohibited in the building.
The First Amendment implications of a Second Amendment case
A sign at the entrance of the city hall in Anchorage, Alaska, that warns handgun owners that guns are prohibited in the building.
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October 1, 2021

The Supreme Court is set to hear arguments in an important legal challenge to New York’s concealed carry law. The law requires people registering for concealed carry gun licenses to demonstrate “proper cause” in order to do so, and in particular to demonstrate a specific need for self-defense if they seek to carry a gun for that purpose.

The question in the case is whether the Second Amendment permits New York to restrict the carriage of firearms in this manner. The meaning, intent and reach of the Second Amendment remain a matter of deep controversy, but the Supreme Court has made clear that Second Amendment rights are not absolute. Regulations on carrying guns in public, both open and concealed, have been common measures throughout American history as a means of maintaining peace and safety in public places. On September 21, the ACLU and the New York Civil Liberties Union filed a friend-of-court brief in the Supreme Court in New York State Rifle & Pistol Association v. Bruen, arguing that New Yorks’ limits on carrying guns in public spaces are constitutional. In particular, we argued that states have an important, and historically grounded, interest in restricting the carrying of guns in order to make public spaces safe for democratic participation, including First Amendment activity such as assembly, association, and speech.

What important First Amendment interests are at stake when it comes to carrying guns in public? We sat down with David Cole, ACLU national legal director and Perry Grossman, senior staff attorney with the New York Civil Liberties Union, to address some key questions.

How and why are concealed carry restrictions a First Amendment issue?

States have many justifications for regulating the public carrying of weapons, concealed or otherwise, but one especially important justification is that such restrictions can facilitate civic engagement by promoting safety in public spaces and reducing the chances that any disagreements do not lead to lethal violence.

Democratic self-governance depends on the free-flowing, sometimes heated exchange of ideas, including views that may be shocking, upsetting, or infuriating. Streets, sidewalks, parks, and other public spaces are essential spaces for airing views that may be controversial or unpopular. When people don’t know who may be carrying a concealed weapon, but know that state law allows most, if not all, people to do so, they may rightly fear voicing opinions or assembling with groups that may be controversial or unpopular. One cannot know whether or when an armed person will turn to violence in response to a remark that offends them. Regulating concealed weapons in public promotes robust public debate and even harsh criticism by reducing the likelihood that heated arguments will escalate to intimidation and violence.

What is your response to concerns that criminal laws restricting the possession and carrying of guns continue to be disproportionately applied against Black people?

Black and Brown communities are undeniably disproportionately targeted, policed, and harmed by our criminal legal system, and there is no reason to believe gun law enforcement is any exception. We condemn such discrimination. Discriminatory law enforcement, of gun laws or any other laws, violates the Equal Protection Clause, and warrants serious attention from courts, the police, and our political leaders. But the question presented here is whether the Second Amendment prohibits the states from imposing any restrictions on carrying guns in public, regardless of their motivation or enforcement. Research shows that Black communities are disproportionately harmed by gun violence and that restrictions on gun possession can reduce that harm. Where criminal laws governing firearm possession are either motivated by discrimination or enforced in discriminatory ways, those laws should be challenged under the Equal Protection Clause and other anti-discrimination laws. At the same time, states should not be prohibited from enacting gun restrictions that can reduce injuries and deaths.

Have the ACLU and NYCLU historically advocated proactively on Second Amendment issues? If not, why now?

Until recently, Second Amendment jurisprudence was fairly well-settled and stable. Given the amendment’s reference to “a well regulated Militia” and “the security of a free State,” the courts for nearly 100 years took the position that the Second Amendment protected only a collective right, not an individual right. That longstanding view was upended in 2008 when the Supreme Court in District of Columbia v. Heller ruled that the Second Amendment protected an individual right to possess common firearms in the home for self-defense. Two years later, in McDonald v. City of Chicago, the court ruled that the Second Amendment also limited the ability of state and local governments to restrict possession of common firearms in the home. So Second Amendment jurisprudence at the Supreme Court is still in its infancy. This is only the third gun rights case the court will decide since the early 20th century.

We filed a brief with the Supreme Court because in our view, this Second Amendment case has important free speech and First Amendment implications.

Is there a meaningful difference between concealed carry and open carry in terms of their effect on public life?

Whether carried openly or concealed, weapons in public places present safety risks that can inhibit the full exercise of First Amendment rights. Where states have adopted more permissive public carry laws, there have been recent examples of guns interfering with free speech, free assembly, and even the democratic process itself. Open carry can disrupt the public square through the intimidating display of lethal weapons. For example, in 2020, armed protesters forced the suspension of the activities of democratically-elected state legislatures in Michigan and Oregon.

Permissive concealed carry laws can have similarly pernicious consequences. People carrying concealed weapons have used their guns to threaten, injure, or kill people or disrupt speakers and protests espousing views with which they disagreed. Permissive concealed carry can deter people from speaking freely, protesting, or otherwise engaging in civic life by undermining confidence in the safety of spaces where public exchange takes place. Concealed carry restrictions will reduce the fear of intimidation and violence that can deter people from participating in civic life in public places.

What research supports the link between the proliferation of guns and a chilling effect on the exercise of First Amendment speech and assembly rights?

An analysis of more than 30,000 public demonstrations in the United States between January 2020 and June 2021 found that protests in which people are carrying arms are more than six times as likely to escalate into violence or destruction as unarmed demonstrations. ​​The relatively greater eruption of violence or destruction at armed protests is consistent with social science research on the “weapons effect,” showing that the presence of weapons is likely to make both the carrier and non-carrier more aggressive. Research aggregated by the Harvard Injury Control Research Center shows that the presence of guns can escalate arguments into incidents of intimidation and violence and the utility of guns as instruments of self-defense may be limited. Research further shows that “most Americans are not impervious to the psychological effects of guns in their community, and that by a margin of more than three to one, more guns make others in the community feel less safe rather than more safe,” with women and members of minority groups substantially more likely to report feeling less safe than men and whites.

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