Defending
Democracy
ADDRESSING THE DANGERS
OF ARMED INSURRECTION
December 2023
Defending Democracy: Addressing the Dangers of Armed Insurrection
2
Table of Contents
I Executive Summary ................................................................4
II Overview ..........................................................................5
III Insurrectionism in the United States ..................................................6
IV Insurrectionism, Guns, and the Constitution .......................................... 12
V Anti-Insurrectionism Policy and Practice Solutions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
VI Summary of Recommendations .....................................................24
VII Conclusion
........................................................................24
Appendices .......................................................................25
Endnotes .........................................................................28
Defending Democracy: Addressing the Dangers of Armed Insurrection
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About This Report
About the Johns Hopkins Center for Gun Violence Solutions
The Johns Hopkins Center for Gun Violence Solutions combines the expertise of respected gun
violence researchers with the skills of experienced gun violence prevention advocates. We use a
public health approach to conduct rigorous scientific research to identify a range of innovative
solutions to gun violence. Using the best available science, our Center works toward expanding
evidence-based advocacy and policy-making eorts grounded in principles of equity. This
combination of expertise creates a unique opportunity to turn public health research into action
that reduces deaths and injuries from gun violence.
Report Authors:
Tim Carey, JD
Kelly Roskam, JD
Joshua Horwitz, JD
Support for This Report
We would like to thank the Joyce Foundation and the Morningstar Foundation for supplying core
support for this report.
How to Cite This Report
Carey, T., Roskam, K., & Horwitz, J. (2023). Defending Democracy: Addressing the Dangers of
Armed Insurrection (2023 Rerelease). Johns Hopkins Bloomberg School of Public Health.
Defending Democracy: Addressing the Dangers of Armed Insurrection
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I
Executive Summary
The growing presence of firearms in political spaces in the United States endangers public health,
safety, and the functioning of democracy. Far from being an outlier, the January 6th insurrection at
the United States Capitol was part of a long line of events in which individuals have sought to use
political losses to justify violence or threats of violence to disrupt our government and limit civic
engagement. These attacks on our nation and democratic institutions are preventable, but not
without taking purposeful action.
This report is both an examination and a warning of the threat that armed insurrectionism poses
to democracy in the United States. It also counters the false narrative that the Constitution creates
rights to insurrection and the unchecked public carry of firearms, and rejects the notion that
violence has any place in our nation’s politics. The report concludes with recommended policy
and practice solutions that policymakers and advocates can use to address the dangers of armed
insurrectionism.
The First and Second Amendments Do Not Protect a Right to Armed
Insurrection
• Courts have not recognized the open carry of guns as speech protected under the First
Amendment. If anything, the presence of guns at venues where political speech occurs, such
as legislative buildings and demonstrations, imperils the exercise of First Amendment rights.
• A right to take up arms against the government has not been recognized by courts as a
protection within the Second Amendment and is incompatible with our democracy. As
evidenced by events like the 1995 Oklahoma City bombing and the January 6th insurrection,
individuals deciding for themselves when democracy becomes “tyranny” jeopardizes lives
and the foundational civil liberties of free speech and fair elections necessary for democratic
governance.
Policy and Practice Recommendations
• Regulate the public carry of firearms
• Strengthen existing laws, or increase the enforcement of current laws, to prohibit paramilitary
activity
• Prohibit the civilian possession of firearms in locations essential to political participation,
such as polling places, legislative buildings, and protests to protect the core functions of
government
• Enact and implement Extreme Risk Protection Order laws to temporarily disarm people who
pose a high risk of violence
• Repeal or create exceptions for firearm preemption laws to give local governments the ability
to create policies to address risks of insurrectionism in their jurisdictions
• Break the insurrectionist permission structure by openly denouncing violence
Defending Democracy: Addressing the Dangers of Armed Insurrection
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Washington, D.C. - January 6, 2021:
Rioters overrun the U.S. Capitol
Building to stop the certification of
Joe Biden’s Electoral College victory
by Congress. (lev radin/Shutterstock)
II
Overview
On January 6th, 2021, attackers breached the United States Capitol for
the first time since the War of 1812.
1
For several harrowing hours, this
living monument to democratic ideals was overrun, looted, and desecrated. However, the invaders
this time were not foreign soldiers during a period of war, but a mob of Americans bent on
overturning a lawful presidential election.
2
A throng of rioters that included o-duty law
enforcement, state legislators, members of extremist unlawful-militias, current and past military
members, and thousands of others overwhelmed Capitol police and poured into the halls of
Congress, resulting in injuries, extensive property damage, and death.
3
Outside, a noose hanging
from an impromptu gallows loomed over a crowd bearing emblems of white supremacy and
religious intolerance.
4
Rioters carried firearms illegally into the building,
5
while others stockpiled
firearms nearby.
6
Though the 2020 election was deemed “the most secure in American history” by
U.S. election ocials after extensive recounting and audit measures,
7
over 60 court cases
challenging the election results were defeated or dismissed,
8
and claims of voting fraud or
irregularities had been soundly debunked,
9
the rioters acted outside the peaceful avenues available
to them by turning their political loss into an attack on the nation. The open assault on democracy
and displays of hate sent ripples around the world, emboldening those who wish to see
representative government destroyed.
10
Defending Democracy: Addressing the Dangers of Armed Insurrection
6
The January 6th insurrection has since been decried in courtrooms and Congress.
11
Over 1,000
people have been charged for their involvement with the Capitol siege, many of whom have
already plead guilty or been found guilty after trial.
12
Yet, the riot is only the most notorious of a
growing number of incidents that evidence a rise in public willingness to entertain violence as a
legitimate political tool.
As the events of January 6th showed the world with painful clarity, the threat insurrectionism
poses to democracy in the United States is not hypothetical. Insurrection is here, and the seeds
have been sown for generations. The invasion of the U.S. Capitol on January 6th was foreshadowed
by a long history of incidents connected by a common theme: a desire to disrupt a democratically
elected government with violence. What matters most is that policymakers and advocates learn
from the past, critically examine the present, and take action now to save the future.
III
Insurrectionism in the United States
For the purpose of this report, we define
insurrectionism as the use of force, threat of force, or
advocating for use of force as an appropriate response
to a government policy or action “even when that
policy or action has been carried out by democratically
elected representatives and constrained by an
independent judiciary with the power to vindicate
individual rights against the state.”
13
Storming the U.S.
Capitol and threatening the lives of legislators to
overturn the results of a lawful presidential election is
an egregious example of insurrectionism, though
insurrectionist acts need not be so large and dramatic.
Individuals threatening election workers if the results
of an election are not to their liking is also
insurrectionist activity.
Phoenix, Arizona - November 7, 2020: A reporter
interviews an armed demonstrator protesting the results
of the 2020 election outside Arizona’s Capitol building.
(Rebekah Zemansky/Shutterstock)
“If you want to get to President Trump, you’re going to have to go
through me, and you’re going to have to go through 75 million
Americans just like me. And I’m going to tell you, most of us are
card-carrying members of the NRA. That’s not a threat – that’s a public
service announcement”
14
- Kari Lake, Arizona Gubernatorial candidate, calling for armed resistance to ongoing criminal
investigations of former President Donald Trump
Defending Democracy: Addressing the Dangers of Armed Insurrection
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1. Insurrectionism Timeline
The United States has endured violent insurrections since its founding. Shay’s Rebellion and the
Whiskey Rebellion in the late 18th century both stemmed from feelings of economic hardship and
resentment toward increased taxation passed by Congress, and were eventually quelled by state
militia forces.
15
Decades later, President Andrew Johnson declared that the people in the states that
took up arms against the U.S. in the Civil War were in “insurrection against the United States.”
16
Though these insurgents may have felt they were embodying the spirit of revolution from the
American Revolutionary War, there are important distinctions to be made. The American
revolutionaries had no legitimate means of expressing their grievances with the British before
fighting for their rights. Participants in founding era rebellions and supporters of the Confederacy
in the Civil War had democratic processes at their disposal through which their interests were
represented in government. Armed violence is never a resort in a democracy—first, last, or
otherwise.
The topic of modern-day insurrectionism became a focus of public discourse in 1995, after the
bombing of an Oklahoma City federal building claimed 168 lives and injured hundreds more.
17
The
bombers were former members of the U.S. Army who had since joined far-right, anti-government
movements and committed the deadliest act of domestic
terrorism in American history.
18
In a letter to his hometown
newspaper, one of the bombers wrote that the bombing “was
‘a legit tactic’ in his war against what he considers an out-of-
control federal government.”
19
To some, political dissent has
become closely tied to undermining democratic government
as a whole.
1786–1787
Shays’ Rebellion
1791–1794
Whiskey Rebellion
1861–1865
American Civil War
In the decades since the Oklahoma City bombing, the
open threat insurrectionism poses to democracy has been
exacerbated by the expanding role of firearms in the political
sphere. In 2014, Cliven Bundy led armed persons and
members of self-styled “militias” in deadly armed standos
with federal agents in the western United States in eorts to
remain on occupied federal land.
20
The Bundys refused to pay
for their cattle to graze on government land, believing that
federal law does not apply to them, and organized with other
armed groups to remain on the land.
21
In 2016, Cliven’s son
Ammon Bundy and a group of armed militants took over and
occupied the headquarters of the Malheur National Wildlife
Refuge, they claimed, in protest of the convictions of two
ranchers for setting fires on federal land.
22
Armed takeovers
of state capitol buildings in Idaho, Michigan, and Oregon to
protest 2020 COVID measures foreshadowed the storming of
the U.S. Capitol months before January 6th.
23
During ballot
counting after the contentious 2020 presidential election,
armed protesters surrounded vote tabulation centers in states
where the vote count was close, causing election workers to
fear for their safety and temporarily shut down operations in
some cases.
24
“Armed vigilantes” later raised national alarm
by patrolling ballot drop-o boxes in Arizona during the 2022
midterm elections, exemplifying a growing willingness to use
weapons to disrupt democratic processes.
25
Defending Democracy: Addressing the Dangers of Armed Insurrection
8
Individual election workers have received threats as well. Ralph Jones, who oversaw Fulton County,
Georgia’s, mail-in ballot operation in 2020 and had worked in Georgia elections for over three
decades, said that he received death threats following the November 2020 elections.
26
According
to Jones, one caller “threatened to kill him by dragging his body around with a truck.”
27
A woman
left a voicemail for Jones’s boss, stating, “You actually deserve to hang by your goddamn, soy boy,
skinny-a** neck.”
28
Another caller said they would kill Fulton County’s election director by firing
squad.
29
Staci McElyea, an employee of the Nevada Secretary of State’s Oce Election Division
received a call just hours after Congress certified the results of the 2020 presidential election in
which the caller said, “I hope you all go to jail for treason. I hope your children get molested. You’re
all going to f****** die.”
30
These are samples of the “102 threats of death or violence received
by more than 40 election ocials, workers and their relatives in eight of the most contested
battleground states in the 2020 presidential contest” collected by Reuters.
31
Threats against government ocials and election workers have spiked to historic highs. In 2021,
Capitol Police investigated over 10 times more threats to members of Congress than they had in
2016.
32
A Republican nominee for a New Mexico House seat who failed to win the election allegedly
executed a plan to shoot up the homes of his political rivals.
33
California lawmakers were forced
to halt the 2023 legislative session for a day after a man made credible threats against the Capitol
and fired multiple bullets while driving his car.
34
A January 6th defendant was arrested near former
President Obama’s D.C. home in June 2023 after parking near it in a van with two guns and 400
rounds of ammunition, posting on a messaging app the day before that “We got these losers
surrounded!” and “See you in hell, Podesta’s and Obama’s!”
35
Threats Against Members of Congress Investigated by Capitol Police (2016–2022)
36
10000
8000
6000
4000
2000
0
Number of Threats Investigated
2016 2017 2018 2019 2020 2021 2022
Yea r
Unprecedented numbers of election workers have left their jobs in fear of their safety due to
increasing threats and harassment. Some states had almost a 20–30% turnover rate of their local
election ocials within the last year.
37
According to a 2022 survey, one in five election workers
say they may quit election work before 2024 and nearly one in three know someone who left their
roles out of fears for their safety, increased threats, or intimidation.
38
More recent data suggests
that almost half of election workers fear for the safety of their colleagues in 2023.
39
Additional
analysis from January 2020 to September 2022 found that threats of gun violence or death against
local ocials were twice as likely as any other form of threat.
40
These events raise the question of
whether civil servants, regardless of how public-facing their roles may be, should be prepared to
risk their lives to uphold the functions of our democracy. This is a decision that no one should be
forced to make.
Defending Democracy: Addressing the Dangers of Armed Insurrection
9
2. Insurrectionism Is a Growing Threat Often Overlapping With White
Supremacy
In growing numbers, insurrectionist ideologies are being advanced by extremist groups across
the country. The Center for Strategic and International Studies has noted an increase in domestic
terror incidents, finding that 2020 yielded the highest single-year increase and total number
of domestic terror incidents, including the insurrection on January 6th, since the Center for
Strategic International Studies began tracking them in 1994.
41
The Southern Poverty Law Center
has also noted a resurgence of the anti-government movement since 2008 and identified 702
anti-government groups and 523 hate groups actively operating in the United States in 2022.
42
Still, the threats posed by hate and anti-government violence in the United States cannot be
entirely quantified in the number of operating groups at any given point in time. The brazenness
and impact of their actions define the true dangers they pose, especially amid shifts in public
willingness to engage in political violence.
Whether it is directly related or not, the rise of hate and anti-government group activity has
coincided with an increasing willingness of Americans to engage in political violence. Preliminary
results from a nationally representative study found in 2022 that roughly one in five American
adults believe “in general” that political violence was at least somewhat justified.
43
A substantial
minority of survey respondents believed “force or violence” was at least somewhat justified to
achieve a wide array of political objectives, including 24.8% “to stop an election from being stolen,”
7.3% “to stop people who do not share my beliefs from voting,” 24.2% “to preserve an American
way of life based on Western European traditions,” and 18.8% “to oppose the government when it
does not share my beliefs.”
44
“Force or violence” was defined in the survey as “physical force strong
enough that it could cause pain or injury to a person.”
45
+G+
Half (50.1%) of those surveyed agreed at
least somewhat that “in the next few years,
there will be civil war in the United States.”
Half (50.1%) of those surveyed agreed at least somewhat that “in the next few years, there will be
civil war in the United States.”
46
About 2% of respondents in the same study who thought violence
was at least somewhat justified to achieve a wide array of political objectives reported being “very
or completely willing” to kill someone to “advance an important political objective.”
47
That figure
equates to roughly 5 million Americans willing to settle a political dispute by killing the opposition.
48
Another study found that around 20% of Americans think it is appropriate to bring a firearm to
political protests and that about half of gun owners, as compared to a quarter of non-gun owners,
believe that “government is so powerful that people need arms to protect themselves from it.”
49
The volatile combination of firearms and an increasing willingness to engage in political violence
create real threats to public health and safety. For example, mass shootings inspired by the white
supremacist “Great Replacement Theory” at the Tree of Life Synagogue in Pittsburgh, Walmart in
El Paso, and supermarket in Bualo have been among the deadliest the country has ever seen.
50
In addition to religious and racial discrimination, anti-LGBT+ attacks, threats, and demonstrations
spiked in 2022 to over three times the number of events in 2021.
51
Defending Democracy: Addressing the Dangers of Armed Insurrection
10
In March 2021, the Oce of the Director of National Intelligence, the Department of Justice, and
the Department of Homeland Security released an unclassified summary of the threat assessment
on domestic violent extremism, writing that “racially or ethnically motivated violent extremists
(RMVEs) and militia violent extremists (MVEs) present the most lethal [domestic violence extremist
(DVE)] threats, with … MVEs typically targeting law enforcement and government personnel and
facilities.”
52
The assessment noted that “the emboldening impact of the violent breach of the US
Capitol … will almost certainly spur some DVEs to try to engage in violence this year.”
53
Two months
after the publication of this assessment, the White House unveiled a National Strategy for
Countering Domestic Terrorism for the first time in the nation’s history.
54
From the attack on former
House Speaker Nancy Pelosi’s husband in his home to plots by neo-Nazis to disable the power
grids of large cities across the country, these concerns have been substantiated over time.
55
Charlottesville, Virginia - August 12, 2017: White nationalists and counter-protesters clash during a rally that turned
violent, resulting in the death of one and multiple injuries. (Kim Kelley-Wagner/Shutterstock)
There is also significant overlap between armed domestic extremism, insurrectionist activity, and
racial animus. The Center for Strategic and International Studies has identified that right-wing
terror attacks, the predominant form of domestic terrorism in the United States over the past 27
years, were focused largely against individuals because of their race, ethnicity, or religion.
56
Large
armed demonstrations like the 2017 “Unite the Right” rally in Charlottesville, Virginia, which was
marked by violence and death, revolved around the premise of white supremacy.
57
The Department
of Homeland Security echoed these concerns, emphasizing in its annual threat assessment the
alarming rise in domestic terrorism by white supremacists who use “terrorizing tactics … [that]
seek to force ideological change in the United States through violence, death, and destruction.”
58
Many of the anti-government groups identified by the Southern Poverty Law Center in 2022 were
identified as “white nationalist,” peddling ideologies of white supremacy.
59
Defending Democracy: Addressing the Dangers of Armed Insurrection
11
3. Guns Allow Insurrectionists to Easily Disrupt Government, Chill
Political Participation, and Increases the Likelihood That Events Will
Be Violent
Permissive public carry laws allow people, including those committed to insurrectionist ideologies,
to easily disrupt the functioning of government, chill individual participation in that government,
and increase the likelihood that political events will become violent. Legal scholars have
increasingly noted the growing tension between gun carrying and the exercise of political rights.
60
Duke University law professor Darrell Miller wrote in a 2009 law review article, “the presence of a
gun in public has the eect of chilling or distorting the essential channels of a democracy – public
deliberation and interchange. Valueless opinions enjoy an inflated currency if accompanied by
threats of violence. Even if everyone is equally armed, everyone is deterred from free-flowing
democratic deliberation if each person risks violence from a particularly sensitive fellow citizen
who might take oense.”
61
The American Bar Association, a non-partisan voluntary bar association
of lawyers and law students, acknowledged the chilling eect of the public carry of firearms in a
resolution supporting prohibitions on firearms at polling places, noting “[a]t a minimum, civilians
openly carrying firearms can chill the First Amendment speech rights of counter-protesters and
their right to peaceably assemble … When armed protesters storm government buildings, they risk
not only violence to policymakers and government staers, but also disruption to the legislative
debate and lawmaking that are core to a functioning democracy.”
62
In a similar tone, University
of Miami School of Law professor Mary Anne Franks observed that “[a] person in possession of a
loaded gun has the capacity to inflict imminent and fatal injury which necessarily chills freedom of
expression of those around them.”
63
Research has begun to quantify how the public carry of firearms disrupts public life and chills
political participation. According to a 2022 study, there were at least 610 armed demonstrations
across the country between January 2020 and November 2021, more than 100 of which occurred
at legislative buildings and vote counting centers.
64
Analysis of these events revealed that the
presence of firearms increased the likelihood of violence or destructive behavior by 6.5 times
compared to demonstrations where firearms were not evident.
65
Another 2021 study explored
the willingness of individuals to participate in a protest at which firearms would be present.
Participants in the study were surveyed in two separate groups: “a control group with no mention
of firearms in the survey questions and an experimental group presented with survey questions
containing the phrase ‘You knew some participants would be carrying firearms.’”
66
The study
determined that participants in the experimental group were much less likely “to participate in a
protest or engage in expressive behaviors during a protest than participants in the control group”
and “concluded that the presence of firearms at a protest would chill First Amendment expression
for study participants.”
67
Inflamed political divisions are coinciding with increasing firearms carrying to dangerous eect.
New studies confirm what experts increasingly feared—the public carrying of firearms at political
events increases violence and chills participation in the democratic process. These conclusions
highlight a clear need for policymakers to respond to insurrectionist threats before further damage
is inflicted on our communities and democracy.
Defending Democracy: Addressing the Dangers of Armed Insurrection
12
IV
Insurrectionism, Guns, and the
Constitution
The policy and practice recommendations below rest on strong constitutional foundations. Neither
the First nor the Second Amendment creates or protects a right to individual insurrection. The
Second Amendment does allow for reasonable regulation of where and in what manner firearms
may be carried. This section will lay a foundation for our solution analyses by refuting the myth of
the insurrectionary Second Amendment, providing a brief history of Second Amendment case law,
and clarifying that carrying of firearms is not expressive speech protected by the First Amendment.
1. The Myth of the Insurrectionary Second Amendment
The Second Amendment does not create or protect a right to individual insurrection. Scholars,
policymakers, and organizations have suggested a multitude of dierent purposes for the ratification
of the Second Amendment. The preservation of slavery through armed patrols,
68
empowering states
to create their own armed militias for protection,
69
maintaining an armed citizenry to repel foreign
invasions and usurpers,
70
a distrust of standing armies,
71
and a preference for the local control of the
militia forces
72
are all oered as potential motivations for the Amendment’s ratification. The theory
of the Second Amendment’s purpose at issue here, touted by some scholars, policymakers,
73
and
organizations like the National Rifle Association,
74
is the Insurrectionary Theory. The Insurrectionary
Theory of the Second Amendment proposes that “the possession of firearms by individuals serves
as the ultimate check on the power of government … that the Second Amendment was intended to
provide the means by which the people, as a last resort, could rise in armed revolt against tyrannical
authorities.”
75
In other words, it is the idea that the Second Amendment protects a right for individual
Americans to possess and use firearms to overthrow the U.S. government if they believe it has
become tyrannical. However, the Insurrectionary Theory of the Second Amendment has little basis in
actual Constitutional history, nor in the administration of a democratic government.
Defending Democracy: Addressing the Dangers of Armed Insurrection
13
Example Invocations of an Insurrectionary Second Amendment
When asked in a congressional hearing if he agreed with the point of view that people needed
firepower to protect themselves from the government, Wayne LaPierre of the NRA responded:
“Senator, I think without any doubt, if you look at why our Founding Fathers put it
there, they had lived under the tyranny of King George and they wanted to make sure
that these free people in this new country would never be subjugated again and have
to live under tyranny[.]”
76
During the 2016 presidential election, then-candidte Donald Trump insinuated that armed
violence is the only way to stop Hillary Clinton from nominating judges if elected president:
“... By the way, and if [Hillary Clinton] gets to pick her judges, nothing you can do, folks.
Although the Second Amendment people, maybe there is …”
77
In stark contrast to the theory of an insurrectionary Second Amendment, there is evidence that
the framers adamantly opposed the idea of armed uprisings against elected governments. In
the aftermath of insurgencies like Shay’s Rebellion and the Whiskey Rebellion, the framers of the
Constitution had ample reason to distrust self-declared militias organized by entities other than
the states.
78
In George Washington’s address to Congress following the Whiskey Rebellion, he
cautioned his colleagues that “to yield to the treasonable fury of so small a portion of the United
States, would be to violate the fundamental principle of our constitution, which enjoins that the will
of the majority shall prevail.”
79
After the rebellions, Article I, Section 8 of the Constitution bestowed
to Congress the authority “[t]o provide for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions.”
80
The same section also gives Congress the power
“[t]o provide for organizing, arming, and disciplining the Militia,” while deferring the power to
appoint ocers and train militias to the states.
81
Even the idea that organized militias could
eectively defend against threats of tyranny, expressed by James Madison in Federalist No. 46,
applied only to organized state militias.
82
Madison also specified that militias would be controlled
by ocers appointed by the states to “form a barrier against the enterprises of ambition.”
83
Thus,
the “well-regulated Militia” of the Second Amendment applies to militias organized and controlled
by states, not private persons.
84
U.S. courts have also never recognized a right to armed insurrection in the Second Amendment. In
United States v. Miller, one of the few significant evaluations of the Second Amendment by the U.S.
Supreme Court, the justices stated that the “obvious purpose” of the Second Amendment was “to
assure the continuation and render possible eectiveness of … [Militia] forces” that were trained by
the states.
85
In an earlier 1886 case, Presser v. Illinois, the Court held that allowing states the power
to prohibit paramilitary organizations “is necessary to the public peace, safety, and good order”
of society when upholding an Illinois state law that banned the organizing of private militias.
86
In
their majority opinion, justices were frank in stating “[w]e think it clear that the sections under
consideration, which only forbid bodies of men to associate together as military organizations, or
to drill or parade with arms in cities and towns unless authorized by law do not infringe the right of
the people to keep and bear arms.”
87
Even when the court first espoused an individual constitutional right to bear arms in self-defense
over a century later in District of Columbia v. Heller, the majority opinion did not call into question
the holding in Presser that the Second Amendment “does not prevent the prohibition of private
paramilitary organizations.”
88
The majority in Heller ultimately held that the core of the right is
armed self-defense, without relying on anti-tyranny reasoning.
89
The anti-tyranny theory is also
Defending Democracy: Addressing the Dangers of Armed Insurrection
14
largely inconsistent with the limitations on the Second Amendment identified in Heller itself. For
example, Heller identified handguns as the “quintessential self-defense weapon” yet suggests that
“weapons that are most useful in military service—M-16 rifles and the like—may be banned.”
90
Under both historical and contemporary legal standards, there is no recognized right for individuals
to privately organize and bear arms against their country.
The Insurrectionary Second Amendment also has no practical application in a democratic society.
The most practical objection to the Insurrectionary Theory of the Second Amendment can be
summarized in a single question: Who decides when the government has become tyrannical? One
individual’s perception of tyranny cannot replace
what millions view as democracy. As one legal
scholar noted, “Tyranny, like beauty, can be
in the eye of the holder. When he leapt to the
stage after murdering Abraham Lincoln, John
Wilkes Booth shouted: ‘Sic semper tyrannis’
(thus always to tyrants).”
91
Similarly, empowering
individuals to take violent action against public
institutions on their own accord could lead
to “Hobbesian chaos,” where laws become
relative and the nation slips into anarchy.
92
One
of the virtues of representative government is
the right of the public to communally choose
voices to represent their needs and interests.
The Insurrectionary Second Amendment
compromises that core premise of our
democracy.
Fibonacci Blue from Minnesota, USA, CC BY 2.0 via Wikimedia Commons
2. The Scope of the First and Second Amendments in Relation to the
Public Carry of Firearms
Fundamental to the premise of insurrectionism, and the use of firearms in political discourse
broadly, is the ability to carry firearms in public. Whether to actively threaten the well-being of
those they disagree with or to show a general display of force, the public (and often open) carry
of firearms has become more prevalent in political spaces in recent years.
93
Beyond the well-
documented threats to public health and safety posed by the expansive public carry of firearms,
94
the atmosphere of fear created by the presence of deadly weapons is disruptive to the political
process.
95
However, constitutional law is clear that neither the First nor Second Amendments
prohibit limitations on how and where firearms may be carried in public spaces.
A. First Amendment Challenges: The Public Display of Firearms Is Not Protected Speech
There is an organized eort to claim the act of displaying firearms in public is itself a form of
constitutionally protected speech.
96
If the display of firearms is a recognized form of speech, the
argument goes, then firearm restrictions in public places may also be “abridging the freedom of
speech” protected by the First Amendment.
97
However, courts have been dubious of the idea that
the display of firearms is “speech” for First Amendment purposes,
98
and have upheld limitations on
speech around polling places, legislative hearings, and government buildings.
99
Similar time, place,
and manner restrictions on speech can, and should, be applied to firearms at such locations.
For centuries, the Supreme Court has set precedence of what can and cannot be considered
protected speech under the First Amendment. The Supreme Court has acknowledged the
Defending Democracy: Addressing the Dangers of Armed Insurrection
15
distinction between “pure speech” (i.e., spoken or written word) and symbolic speech (i.e.,
wearing a black armband in protest of the Vietnam war), which may both be protected by the First
Amendment.
100
However, the Supreme Court has rejected “the view that an apparently limitless
variety of conduct can be labeled as ‘speech’ whenever the person engaging in the conduct
intends thereby to express an idea.”
101
Some individuals claim that in publicly carrying a firearm,
they are expressing support for the Second Amendment.
102
Even if that were the intent, what a
gun “says” is often unclear. Just as readily as the public display of a firearm could say that the
individual is “Pro-Second Amendment,”
103
it could also be saying something more nefarious like
“stop speaking” or “I will or I want to harm you.”
104
Any potential message the public display of a
gun could convey is drowned out by its more easily understood capacity to kill. Though the
Supreme Court has not had to evaluate whether displaying a firearm would be protected speech,
lower courts have found such conduct is not protected under the First Amendment.
105
Even if
courts did find that the public carry of guns was protected speech under the First Amendment,
the law allows for “reasonable restrictions on the time, place, or manner of protected speech[.]”
106
Carson City, Nevada - July 4, 2020: Armed counter-protesters waive Trump and American flags across the street from
a Black Lives Matter protest. (Trevor Bexon/Shutterstock)
For a more in-depth First Amendment discussion, see Appendix 1.
B. Second Amendment Law: From the Founding to Bruen
For hundreds of years, the Second Amendment was primarily recognized to protect the rights
of states to organize and maintain militia forces.
107
The Supreme Court dramatically changed
the scope of Second Amendment law in the landmark 21st-century cases District of Columbia
v. Heller, McDonald v. City of Chicago, and New York State Rifle and Pistol Association, Inc.
v. Bruen.
108
In Heller, the Supreme Court held for the first time that the Second Amendment
protected an individual right to possess a firearm in the home for self-defense.
109
The Court
cautioned, however, that “[l]ike most rights, the right secured by the Second Amendment is
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16
(1)
(2)
not unlimited” and it is “not a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.”
110
The Court further emphasized that “nothing in [the]
opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms
by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such
as schools and government buildings, or laws imposing conditions and qualifications on the
commercial sale of arms.”
111
According to the Court, this list of “presumptively lawful regulatory
measures … [did] not purport to be exhaustive.”
112
Two years later, in McDonald, the Court held that the Second Amendment applies to the states via
the 14th Amendment
113
and noted that the applicability of the Second Amendment to the states
“limits (but by no means eliminates) [a state or local government’s] ability to devise solutions to
social problems that suit local needs and values.”
114
The Court also repeated its assurances in Heller
regarding the validity of “longstanding regulatory measures.”
115
Like all constitutional rights, the
Second Amendment has limitations to prevent it from depriving life and liberty from Americans
in other respects. After Heller and McDonald, lower courts have generally found that laws and
regulations that are (a) historically longstanding or (b) suciently related to furthering an important
government interest are permissible under the Second Amendment.
116
However, all stability in Second Amendment jurisprudence was upended in the 2022 case NYSRPA
v. Bruen. In Bruen, the Court expanded the Second Amendment’s right to armed self defense to
outside the home.
117
More consequential, however, was the Court’s rejection of the post-Heller
framework developed by the lower courts. The Court notably removed the need for lower courts
to consider whether a law is suciently related to furthering an important government interest,
calling it “one step too many.”
118
Instead, it required the government to prove that “modern firearms
regulations are consistent with the Second Amendment’s text and historical understanding.”
119
The Post-Bruen Two-Step Second Amendment Test
1
The court must determine whether the plain text of the Second Amendment covers the
conduct regulated by the law.
If the answer at step 1 is “no,” then the analysis stops here and the law does not violate the
Second Amendment. If the answer is “yes,” then the court moves on to step 2.
2
The government must show that the modern law is suciently analogous to historical
firearms laws.
If the answer at step 2 is “no,” then the law violates the Second Amendment and must be
chan
ged. If the answer is “yes,” then the regulation does not violate the Second Amendment
and may be upheld.
The implications of prohibiting the consideration of modern day interests in Second Amendment
cases are staggering. Instead of governments devising contemporary solutions to gun violence
issues faced by their constituencies today, they must prioritize comparisons to what the Founders
chose to regulate hundreds of years ago. This arbitrary limitation has facilitated subjective analyses
and unconscionable questions, such as whether the Founders’ silence on issues such as domestic
violence limit policymakers to the racially and sexually discriminatory values of early America.
120
Still, even with the challenges posed by the Bruen test, there are important policy and practice
solutions to meaningfully address risks of armed political violence that survive legal scrutiny. We
anticipate these to include the solutions below.
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17
V
Anti-Insurrectionism Policy and
Practice Solutions
Below is a non-exhaustive list of policy and practice recommendations that can be implemented
on the state and local levels to help mitigate the threats of armed insurrectionism across the
nation. Though each of these solutions possess merit in their own right, the potential for positive
outcomes is likely to increase when they work in concert.
1 Regulate the Public Carry of Firearms
State and local governments should take action to curtail the risks posed by firearms in
public. Clarifying the contours of where and when public carry is permitted, if at all, promotes
public peace and safety.
• Prohibit or regulate the open carry of firearms in public spaces: The open carry of firearms
puts everyone nearby on notice that their life could be ended in an instant. Such a dangerous
and fear-inducing activity should be prohibited except for legitimate sport shooting and
hunting activities.
• Regulate the concealed carry of firearms: Weak concealed carry laws are associated with an
increase in violent crime. States should therefore enact rigorous permitting processes for the
concealed carry of firearms.
The number of permitless concealed carry states has dramatically increased in recent decades,
with over half of states currently allowing permitless concealed and open carry of firearms.
121
The
number of states allowing permitless concealed carry has grown since the 1980s from one to 27.
122
Such drastic shifts in policy have consequences. A 2019 analysis found that enactment of certain
weak concealed carry permitting laws was associated with an increase in violent crime.
123
Research
also suggests that “right to carry” concealed handgun regimes, which includes laws that require
the state to issue a permit or allow for the carrying of firearms without a permit, are related to
statistically significant increases in violent firearm crime, reductions in police eectiveness, and
increases of gun theft.
124
Permitless
carry
Concealed
carry permit
required
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18
Carson City, Nevada - January 6, 2021: Armed protesters gathered outside the Nevada State Legislature in opposition
to the certification of Joe Biden’s Electoral College victory by Congress. (Trevor Bexon/Shutterstock)
In regard to open carry, only four states and D.C. generally limit the open carry of handguns,
125
and
six states and D.C. do the same for long guns, subject to certain exceptions.
126
States that allow
open carry are at least five times more likely to have firearms present in public demonstrations
than states that do not.
127
Beyond the public health and safety implications of lax public carry laws,
experts have observed how “expanding gun rights beyond the home and into the public sphere
presents questions concerning valued liberties and activities of other law-abiding citizens.”
128
Before Bruen, almost every federal appellate court had decided legal challenges to open and
concealed carry laws,
129
with the majority recognizing the broad discretion of state and local
governments to regulate firearms in public spaces.
130
As the limits of regulating firearms in public
continue to be litigated after Bruen, the Court made clear that at least some firearm permitting
regulations are permissible. The majority explained in a footnote that “... nothing in our analysis
should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing
regimes, under which a general desire for self-defense is sucient to obtain a [permit].”
131
Justice
Kavanaugh also clarified in his concurrence that “the Court’s decision does not prohibit States
from imposing licensing requirements for carrying a handgun for self-defense” or “impact existing
[shall-issue] licensing regimes.”
132
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19
2 Strengthen Existing Laws, or Increase the Enforcement of Current Laws,
to Prohibit Paramilitary Activity
State policymakers should either strengthen existing laws regulating paramilitary activity in
their state or clarify how current laws ought to be enforced.
• Ban militia-style activity: Military-style training, parading, and shows of force by civilian
groups unaccountable to the public are a threat to democracy and public safety. Laws
prohibiting these activities need to be created if they do not exist or prioritized for
implementation if they do.
From the Unite the Right march at Charlottesville to the assaults on state capitol buildings after the
2020 presidential election, armed paramilitary groups across the country have increased their
disruptive interventions in everyday aairs.
133
However, the Constitution and our nation’s laws reflect
a long history of justified mistrust in armed groups that are not accountable to democratically elected
governments.
134
States have the authority to limit paramilitary activity within their borders and the
preexisting legal foundations to prevent organized insurrectionist eorts.
All 50 states have some legal limitations on paramilitary
groups, though the depth and enforcement of these
laws vary. Forty-eight state constitutions possess a
“subordination clause,” which requires militaries to obey a
“civil power,” such as a governor.
135
Subordination clauses
establish a clear legislative intent that any armed forces
operate at the behest of the state, not private parties or
interests. Twenty-nine states outlaw the organization of
private militias without state government approval,
136
typically by prohibiting specific military-like conduct,
such as “parading” or “drilling” in public with firearms.
137
Texas used its law against unauthorized private militias in
the 1980s to prevent military-like demonstrations by the
Ku Klux Klan that were designed to terrorize communities
of color.
138
Similarly, 25 states prohibit paramilitary activity
intended to prompt civil disorder,
139
such as teaching or
demonstrating how to create or use firearms or explosives
with the intent to sow discord. It is also illegal in at least
17 states to present oneself as peace or military ocers if not actually employed as such.
140
These
laws align with the Supreme Court’s long-held precedent “that the right to keep and bear arms [is]
not violated by a law that forbade ‘bodies of men to associate together as military organizations,
or to drill or parade with arms in cities and towns unless authorized by law.”’
141
In total, paramilitary
laws prohibit individuals or groups of people creating their own militaristic presence to confuse and
disrupt the functioning of society.
Madison, Wisconsin - April 24, 2020: Armed demonstrators
protesting Wisconsin’s stay at home orders during the
initial spread of COVID-19. (Aaron of L.A. Photography/
Shutterstock)
Despite the existence of these aforementioned laws, many militia groups operate with impunity
across the country. Georgia, Oregon, Texas, Washington, and other states have experienced a
rise in open militia activity at protests related to racial justice, the 2020 elections, and COVID
lockdowns, yet this militia activity drew less attention from law enforcement than Black Lives
Matter protesters during the same time period.
142
Ties between some members of law enforcement
and extremist militia groups have raised alarms among advocacy communities.
143
Some experts
have criticized existing paramilitary laws for being unclear and dicult to enforce, inspiring state
legislators in Vermont, New Mexico, and Oregon to introduce new legislation clarifying these
laws in 2023.
144
A law’s eectiveness ultimately comes down to its application. Education of law
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20
enforcement, courts, elected ocials, and the public is required to ensure these protections
against unsanctioned militia activity can achieve their intended purpose.
3 Prohibit the Civilian Possession of Firearms in Locations Essential to
Political Participation, Such as Polling Places, Legislative Buildings, and
Protests to Protect the Core Functions of Government
State and local governments should pass laws to limit the presence of firearms, open or
concealed, in locations essential to the functioning of democracy, such as polling places, legislative
buildings, protests, and other places of political participation. Such policies should incorporate the
following considerations:
• Time-based limitations: These restrictions can be tailored to the days and times such
buildings, surrounding spaces, and permitted events are being used for political purposes to
avoid being overly broad.
• Buer zones: Any limitation or restriction should also apply to the space around buildings and
permitted spaces to prevent armed intimidators standing in close proximity to the grounds
they are barred from. Anywhere from 40 to 100 feet could be an ample buer zone.
• Home exceptions: It is also important to exempt these laws from applying to private homes
that are within the designated buer zone, so as to not create an unconstitutional ban of
firearms in the home.
The surest way to protect against armed
intimidation at political places is to prohibit
firearms from being present in the first place.
It can be exceptionally dicult to discern when
the display of firearms alone rises to the level of
intentional intimidation.
145
The presence of firearms
at polling places, regardless of whether they are
meant to intimidate, may discourage people from
participating in democracy.
146
Though many states
and the federal government
147
have dierent voter
intimidation and firearm brandishing laws, these
provide “neither clear rules of conduct to inform
people what they are allowed to do, nor clear rules
of decision to instruct police and prosecutors what
to permit and when to intervene.”
148
An explicit
prohibition on firearm possession in places of
political participation would send a plain message
to voters that they can participate in democracy without fearing for their safety and will make
enforcing these laws easier for law enforcement and the courts.
Lansing, Michigan - January 17, 2021: Armed protesters denying
the results of the 2020 election on the lawn of the Michigan
Capitol building. (Lester Graham/Shutterstock)
Several states have already implemented place-based firearms limitations in political spaces, though
more work is needed. At the time of writing this report, 16 states and the District of Columbia prohibit
or limit the possession of firearms within a certain distance of polling places on election days.
Arizona, California, D.C., Delaware, Florida, Georgia, Louisiana, Maryland, New Jersey, New York,
Texas, and Virginia prohibit guns broadly,
149
while Mississippi, Missouri, Nebraska, and South Carolina
prohibit concealed carry only.
150
Colorado, where a significant majority of the public votes by mail, is
the only state to prohibit only open carry around polling locations and voting drop boxes.
151
Nearly all
states prohibit firearms in schools and government buildings to some degree.
152
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21
Place-based limitations on firearm possession are backed by legal precedent. Heller identified
“laws forbidding the carrying of firearms in sensitive places such as schools and government
buildings” as being “presumptively lawful” under the Second Amendment.
153
Bruen rearmed
the constitutional validity of sensitive place prohibitions on firearm possession, explicitly listing
“legislative assemblies, polling places, and courthouses” as non-exhaustive examples of places
where firearms could be constitutionally restricted.
154
The exact boundaries of what can and
cannot be considered a sensitive place beyond the examples listed in Heller and Bruen are unclear.
Location restrictions are currently being litigated in lower courts.
155
4 Enact and Implement Extreme Risk Protection Order Laws to Temporarily
Disarm People Who Pose a High Risk of Violence
The largest threat militia groups pose to public health, public safety, and democracy is vested
in their ability to wield deadly weapons. However, a legal tool already exists in almost half the
states and the District of Columbia to address individuals posing demonstrable risk of violence with
firearms before it occurs.
156
Extreme Risk Protection Orders (ERPOs) are court orders that can be
used to temporarily prohibit the possession and purchasing of firearms by persons deemed by a
court to pose a significant danger of causing injury to themselves or others.
157
Extreme risk laws
balance public health and safety interests with robust due process protections to save lives while
abiding by constitutional rights.
158
State governments should pass and implement ERPO laws.
ERPOs are a promising tool to prevent individuals at high risk of committing armed violence from
acting on it. ERPOs have a wide field of application to prevent homicides
159
and suicides,
160
and
have the potential to quell domestic terror as well. Many of the rioters arrested after the January
6th insurrection at the U.S. Capitol had histories of violent behavior and concerning behavior that
could, at least temporarily, have prevented them from possessing firearms.
161
Self-styled militia
groups with anti-government sentiment, such as the Oath Keepers,
162
the Boogaloo movement,
163
and others,
164
also have histories of violent and intimidating behavior, both as organizations and
among their individual members. ERPOs have already been issued by courts to temporarily remove
firearms from members of some armed groups based on threats and conduct.
165
Few courts
have considered Second Amendment challenges to ERPO laws, and the majority that have been
presented with such cases have upheld them.
166
Washington state used its ERPO law to temporarily disarm
a man who made repeated, targeted threats against
Governor Inslee’s life online. He stated that “Governor
Inslee and his sta are criminals. I will kill them all
now … I am cleaning my guns and sharpening my
knives,” and called for a “civil war.”
– ERPO petition August 2022
Joe Mabel/Wikimedia Commons
To learn about Extreme Risk Protection Orders in greater detail, below are a few comprehensive
resources:
• Extreme Risk Protection Orders: New Recommendations for Policy and Implementation
• Bloomberg American Health Initiative Implement ERPO website
Defending Democracy: Addressing the Dangers of Armed Insurrection
22
5 Give Local Governments the Ability to Create Policies to Address Risks of
Insurrectionism in Their Jurisdictions
State policymakers should repeal or create exceptions to state preemption laws as a first step
to reducing gun violence and the threats posed by armed insurrectionists. Local governments
concerned about the armed disruption of democracy should be able create policies tailored to
meet the specific needs of their jurisdictions, as opposed to being hamstrung by gaps in state law,
including:
• Place- and time-based limitations: Creating limitations on the carrying of firearms in places
integral to political participation, including polling places, legislative buildings, and political
demonstrations, would help local governments address concerns of political violence and
intimidation specific to their jurisdictions.
• Regulating firearms in public: Prohibiting or regulating open carry of firearms and regulating
concealed carry of firearms is also a proactive way for local governments to reduce the risks
posed by insurrectionism.
In many states, local eorts to respond to the threats
posed by insurrectionism are stifled by strict preemption
laws, which are enacted by state legislatures to prevent
local governments from adopting gun violence prevention
policies more robust than relevant state law.
167
Preemption
laws have been used by state legislatures to limit local
decision-making on issues ranging from expanding
paid sick leave to anti-discrimination laws,
168
and have
ballooned in use over the past three decades to implicate a
“wide array of policy areas.”
169
To date, 45 states limit local
control over firearms regulations
170
, a stark increase from
only seven states in 1979,
171
with at least 11 states having
“absolute preemption” with no exceptions.
172
Some states
have adopted what a few scholars have coined as “punitive
preemption” or “hyper-preemption,” where “localities with
potentially preempted laws not only face the prospect that
those rules will be invalidated, but also risk inviting civil
liability, financial sanctions, removal from oce, or criminal
penalties.”
173
Preemption laws have been so eective at
stymieing gun violence prevention eorts on the local level
that they have been considered by legal scholars to be “a
more important determinant of gun regulation than the
Second Amendment itself.”
174
Drug Free and Gun Free School Zone
sign in Dallas, Texas. (Philip Lange/
Shutterstock)
Permitting local control of firearms laws can save lives. Colorado lawmakers repealed the state’s
entire firearm preemption statute in 2021, but only after a mass shooter used an assault-style
weapon to kill 10 bystanders days after a court struck down the city of Boulder’s assault weapons
ban as violative of the preemption statute.
175
Tragedies do not need to occur before meaningful
change can be implemented, especially when they are foreseeable and preventable. Repealing or
reducing the scope of firearm preemption laws allow local governments to serve the people they
represent by addressing a critical public health need.
Defending Democracy: Addressing the Dangers of Armed Insurrection 23
6 Break the Insurrectionist Permission Structure by Openly Denouncing
Violence
Political leaders and other public figures should actively denounce violence. Just like public
figures can encourage people to support violence by endorsing it, research suggests they also have
the potential to decrease the violent attitudes of their supporters by denouncing violence. Leaders
must recognize the power of their voice and use it for the public good.
It is well understood in sociological research that violent rhetoric can translate into actual violence.
An international study of hate speech in politics has found that speech by political figures that
disparages minority groups increases the likelihood of domestic terrorism in that country.
The United States is no outlier in this trend. For example, researchers identified then-President
Trump’s posts on Twitter about Islam-related topics predicted increases in xenophobic tweets by
his followers, news programing attention paid to Muslims, and hate crimes on the days following
the publication of his posts. Another study on Trump’s 2016 presidential campaign found
that “prejudiced elite speech” emboldens prejudiced listeners to both express and act on their
prejudices, especially when the prejudiced speech is “tacitly condoned by other elites.”
177
176
178
Encouragingly, evidence also suggests that leaders have the same power to quell violent attitudes
as they do to incite them. Research on partisanship and political violence from Lilliana Mason
and Nathan Kalmoe has found that explicit messages from political leaders denouncing violence
significantly reduce Americans’ support for violence. These findings were more pronounced
for people who identified strongly with the political party that the message originated from.
In a similar vein, research has also found that viewing opponents as less violent lessens partisan
support for violence by reducing their fears for their safety.
180
Though gun policy is an essential
element for reducing the risk of political violence and intimidation, political leaders speaking out
against violence can have its own disarming eect.
181
179
Some political leaders are leading by example when they denounce violence:
“[W]e must — with one overwhelming, unified voice — speak as a
country and say there is no place — no place — for voter intimidation
or political violence in America, whether it’s directed at Democrats or
Republicans. No place, period. No place ever.”
- President Joe Biden
182
“The leaders must tone it down, leaders from the top and leaders of all
stripes. Parents, bosses, reporters, columnists, professors, union chiefs,
everyone. The consequence of the crescendo of anger leads to a very
bad place. No sane person can want that.”
- Senator Mitt Romney
183
For a case study of Virginia’s response to potential armed political violence, see Appendix 2.
Defending Democracy: Addressing the Dangers of Armed Insurrection
24
VI
Summary of Recommendations
Quelling insurrectionism and protecting the integrity of our nation’s democratic institutions cannot
be a passive process. The rising prevalence and activity of armed insurrectionist movements,
often combined with racial animus, is a clear sign that legislatures must take decisive action to
protect the safety and civil liberties of voters and the integrity of our democratic institutions at
large. Though the most eective remedies for each state and locality may look dierent depending
on jurisdictional dierences, the following are general recommendations that policymakers and
advocates can follow to push back against insurrectionism where they live:
• Regulate the public carry of firearms
• Strengthen existing laws, or increase the enforcement of current laws, to prohibit
paramilitary activity
• Prohibit the civilian possession of firearms in locations essential to political participation,
such as polling places, legislative buildings, and protests, to protect the core functions of
government
• Enact and implement Extreme Risk Protection Order laws to temporarily disarm people who
pose a high risk of violence
• Repeal or create exceptions for firearm preemption laws to give local governments the
ability to create policies to address risks of insurrectionism in their jurisdictions
• Break the insurrectionist permission structure by openly denouncing violence
VII
Conclusion
The rising prevalence of armed insurrectionism jeopardizes the integrity of our democracy, but
remedies are within reach. Armed political violence is never a resort in a democracy—first, last,
or otherwise. Policymakers and advocates should advance equitable legal measures to limit
the presence and usage of firearms in political spaces to ensure that the will of the majority, as
opposed to a violent minority, guides the future direction of our country.
Defending Democracy: Addressing the Dangers of Armed Insurrection
25
APPENDIX 1
First Amendment Analysis: Gun Are Not Protected Speech
For centuries, the Supreme Court has developed case law regarding what is and is not considered
protected speech under the First Amendment. The Supreme Court has acknowledged the
distinction between “pure speech” and symbolic speech for First Amendment purposes, noting
how “[s]ymbolism is a primitive but eective way of communicating ideas.”
184
However, the
Supreme Court has also rejected “the view that an apparently limitless variety of conduct can
be labeled as ‘speech’ whenever the person engaging in the conduct intends thereby to express
an idea.”
185
Conduct that is “suciently imbued with elements of communication [may] fall
within the scope of the First and Fourteenth Amendments”
186
if certain criteria are met.
187
More
specifically, the Supreme Court has held that conduct is only considered “symbolic speech,”
and therefore eligible for First Amendment protections, when (i) there is an “intent to convey a
particularized message,” and (ii) the surrounding circumstances give rise to a great “likelihood …
that the message would be understood by those who viewed it.”
188
The Supreme Court has further
noted that when an additional explanation is needed for an audience to understand the intended
message behind conduct, this “is strong evidence that the conduct at issue … is not so inherently
expressive that it warrants protection.”
189
The public carry of firearms on its own does not convey a particularized message that would be
understood by a person viewing them. In practice, the display of firearms in public is dangerous at
worst and concerningly ambiguous at best. Especially in states where the permitless open carry
of firearms is legal, it can be unclear whether someone is committing a crime when they display
firearms in or around sensitive places like legislative buildings, polling places, and permitted
events.
190
If protesters gather with rifles outside of a state legislature before a committee hearing,
are they intending to threaten policymakers into voting a certain way? If someone clearly in favor
of one political candidate shows up at a polling site with a visible firearm, are they intending to
coerce others to vote for their candidate or leave? The lack of clarity surrounding the public display
of guns endangers political rights and the proper functioning of democracy.
Though the Supreme Court has not had to evaluate whether the message behind displaying a
firearm would be understood by others, lower courts have not found such conduct to be protected
speech. The 9th Circuit stated that “[t]ypically a person possessing a gun has no intent to convey a
particular message, nor is any particular message likely to be understood by those who view it.”
191
Michigan courts have espoused a similar view, holding that attempts to communicate messages
by openly carrying firearms did not qualify as protected speech because worried members of
the public did not perceive the firearm owners “as open carry activists demonstrating their First
… Amendment rights,” but rather “were simply alarmed and concerned for their safety and that
of their community.”
192
A Connecticut court evaluating a case in which an individual was openly
carrying a firearm, while wearing a right to bear arms T-shirt, wrote that reasonable ocers could
disagree whether carrying the gun conveyed a message in support of the Second Amendment or
if the individual was simply carrying for other purposes.
193
In doing so, the court found that the gun
carrier’s conduct was not protected by the First Amendment.
194
A court in Ohio also rejected that
the open carry of firearms amounted to protected symbolic speech, observing that the defendant
“[having] to explain the message he intended to convey undermines the argument that observers
would likely understand the message.”
195
These court findings emphasize that the right to free
speech cannot be confused with a right to terrorize others and threaten public safety.
Even in the unlikely event that a court holds that the public display of firearms constitutes
speech, there is another legal approach that allows for regulation under the First Amendment.
Defending Democracy: Addressing the Dangers of Armed Insurrection
26
Though public spaces are aorded the greatest First Amendment protections, speech can still
be governed in these areas.
196
More specifically, the Supreme Court has held that “[E]ven in a
public forum the government may impose reasonable restrictions on the time, place, or manner
of protected speech.
197
Such restrictions must: (1) be content neutral, (2) be narrowly tailored
to serve a significant governmental interest, and (3) leave open ample alternative channels for
communication of the information.”
198
Regulating firearms at public protests would serve significant governmental interests, including:
(1) “preventing violence and crime during protests[,]” (2) “preventing situations from arising in
which violence is a likely outcome[,]”and (3) “protecting citizens from the fear of violence itself.”
199
Such restrictions do not discriminate based on speech content and are narrowly tailored in scope.
Individuals also have numerous other, arguably more eective, methods of communication if the
open display of firearms is prohibited at public protests.
The Supreme Court has also held that symbolic conduct can be regulated if it was intended to
intimidate or threaten in what is referred to as the “true threats” doctrine. The Supreme Court first
stated that true threats constituted a category of unprotected speech in the per curiam opinion
in Watts v. United States.
200
As Seton Hall Law School professor Jessica Miles and numerous
other commentators have noted, Watts failed to provide a clear definition of a “true threat.”
201
The
Supreme Court did not meaningfully expand upon their definition of true threats until the 2023
case of Counterman v. Colorado.
202
The majority in Counterman ruled that “[t]he State must show
that the defendant consciously disregarded a substantial risk that [their] communications would
be viewed as threatening violence” to consider their speech a true threat without First Amendment
protections.
203
It is important to note that though the Supreme Court in Counterman determined
that the First Amendment requires proof that a defendant had some subjective understanding
of the threatening nature of their communication, it does not require proof that the defendant
intended to carry out the threat.
204
Given how inherently threatening the display of firearms
can be, the true threats doctrine is a legal theory worthy of further exploration in the context of
insurrectionism.
Despite increasing rhetoric tying the public carry of firearms to the First Amendment, it is highly
unlikely for courts to extend First Amendment protection to such conduct. Even if courts were to
find the public carry of firearms constitutes speech under the First Amendment, other doctrines
such as time, place, and manner restrictions and “true threats” would allow for the regulation of
firearms. As William & Mary Law School professor Timothy Zick writes, “proponents of open carry
looking to the First Amendment for protection are likely to come away mostly disappointed.”
205
Defending Democracy: Addressing the Dangers of Armed Insurrection
27
APPENDIX 2
Case Study: The Virginia Blueprint to Protect Against Armed Political
Violence
Virginia has taken significant steps in recent years to comprehensively prevent armed political
violence. First, the legislature passed an ERPO law, called Substantial Risk Orders, in 2020.
206
During
a 2020 special legislative session, the legislature passed a bill that amended the commonwealth’s
firearm preemption law to give local governments the ability to regulate firearms in government
buildings, permitted public events, and any location being used for a government purpose.
207
A number of city governments in Virginia, including those in Alexandria, Newport News, and
Richmond, have adopted some or all of these firearm preemption exceptions.
208
Later in 2021,
Virginia passed laws to prohibit the carrying of firearms in Capitol Square and government
buildings and the possession of firearms near polling places, board of election meeting locations,
or vote counting locations while they are in use.
209
The eorts of the Virginia legislature to pass laws to prevent armed intimidation during the
democratic process were bolstered by the collaboration of other state oces. Ahead of the 2020
presidential election, Virginia’s Oce of the Attorney General released both a memo outlining
protections against voter intimidation under state and federal law and guidance for poll watchers
and a short training video for law enforcement and election ocials.
210
In 2021, then-Virginia
Attorney General Mark Herring also issued an ocial opinion instructing county election boards
how the new firearm prohibition at polling sites operates in practice.
211
He clarified that “firearms
are prohibited at central absentee voter precincts, voter satellite oces, and oces of general
registrars where they are the designated locations of early voting in the locality, in the same way
firearms are prohibited at polling places when the polls are open on Election Day” and that “the
prohibitions … do not apply to the entire building that houses the polling place, but rather to the
40-foot boundary around the discrete portion of that building that is used as the polling place.”
212
By passing laws to protect the right to vote without fear of armed intimidation and educating
the public and other relevant stakeholders on how these laws work, Virginia is creating a holistic
blueprint to protect against armed political violence that other states can follow.
Defending Democracy: Addressing the Dangers of Armed Insurrection
28
Endnotes
1
The last major attack on the U.S. Capitol was when it was burned to the ground by British soldiers during the War of 1812. See Pitch, A. (n.d.). The
Burning of Washington. White House Historical Association. https://www.whitehousehistory.org/the-burning-of-washington; see also Sherman, A.
(2021, January 6) A history of breaches and violence at the US Capitol. PolitiFact. https://www.politifact.com/article/2021/jan/07/history-breaches-
and-violence-us-capitol/
2
Mascaro, L. & Reeves, J. (2021, January 11). Capitol assault a more sinister attack than first appeared. AP News. https://apnews.com/article/us-
capitol-attack-14c73ee280c256ab4ec193ac0f49ad54
3
Hymes, C., McDonald, C., & Watson, E. (2021, August 11). What we know about the “unprecedented” Capitol riot arrests. CBS News. https://www.
cbsnews.com/news/capitol-riot-arrests-latest-2021-06-18/
4
See Zaru, D. (2021, January 14). The symbols of hate and far-right extremism on display in pro-Trump Capitol siege. ABC News. https://abcnews.
go.com/US/symbols-hate-extremism-display-pro-trump-capitol-siege/story?id=75177671
, recounting the display of Nazi slogans, white power signs,
Confederate flags, and more.
5
Mascia, J. & Li, O. (2021, January 13). A Running List of Gun Arrests Tied to the U.S. Capitol Attack. The Trace. https://www.thetrace.org/2021/01/
capitol-riot-firearms-arrests-proud-boys/
; see also McDonald, C. (2021, May 27). Handguns, crowbars, Tasers and tomahawk axes: Dozens of
Capitol rioters wielded “deadly or dangerous” weapons, prosecutors say. CBS News. https://www.cbsnews.com/news/capitol-riot-weapons-deadly-
dangerous
6
Capitol Breach Cases | USAO-DC. (n.d.). Department of Justice. https://www.justice.gov/usao-dc/capitol-breach-cases; see also Schapiro, R. (2021,
January 13). Stun guns, ‘stinger whips’ and a crossbow: What police found on the Capitol protesters. NBC News. https://www.nbcnews.com/news/us-
news/stun-guns-stinger-whips-crossbow-what-police-found-capitol-protester-n1254127
7
Kirby, J. (2020, November 13). Trump’s own ocials say 2020 was America’s most secure election in history. Vox. https://www.vox.
com/2020/11/13/21563825/2020-elections-most-secure-dhs-cisa-krebs
8
Wheeler, R. (2021, November 30). Trump’s judicial campaign to upend the 2020 election: A failure, but not a wipe-out | Brookings. Brookings
Institution. https://www.brookings.edu/articles/trumps-judicial-campaign-to-upend-the-2020-election-a-failure-but-not-a-wipe-out/
9
Bump, P. (2022, September 15). Analysis | The 2020 election was neither stolen nor rigged: A primer. Washington Post. https://www.washingtonpost.
com/politics/2022/09/15/2020-election-trump-false-fraud-claims/
10
Oxner, R. & Chappell, B. (2021, January 7). ‘Disgraceful’: World Leaders React To Pro-Trump Extremists Storming U.S. Capitol. NPR. https://www.npr.
org/sections/insurrection-at-the-capitol/2021/01/06/954116762/world-leaders-deplore-pro-trump-extremists-breaching-u-s-capitol
11
Chiacu, D. (2022, June 10). Notable quotes from first hearing on the U.S. Capitol riot. Reuters. https://www.reuters.com/world/us/notable-quotes-
first-hearing-us-capitol-riot-2022-06-10/’ see also Durkin Richer, A., & Kunzelman, M. (2023, February 3). Some Capitol rioters apologize in court
for Jan. 6, downplay crimes after. PBS. https://www.pbs.org/newshour/nation/some-capitol-rioters-apologize-in-court-for-jan-6-downplay-crimes-
after
12
The United States Attorney’s Oce District of Columbia. (2023, July 6). 30 Months Since the Jan. 6 Attack on the Capitol. The United States
Department of Justice. https://perma.cc/F7TM-32ZE; see also George Washington University Program on Extremism. (n.d.). Capitol Hill Siege Cases.
Program on Extremism. https://extremism.gwu.edu/capitol-hill-siege-cases
13
Horwitz, J. & Anderson, C. (2009). Guns, Democracy, and the Insurrectionist Idea. University of Michigan Press.
14
Pengelly, M. (2023, June 12). Kari Lake’s vow to defend Trump with guns threatens democracy, Democrat says. The Guardian. https://www.
theguardian.com/us-news/2023/jun/12/kari-lake-trump-nra-threat-threatens-democracy-arizona-democrat-ruben-gallego
15
Connor, G. E. (1992). The Politics of Insurrection: A Comparative Analysis of the Shays’, Whiskey, and Fries’ Rebellions. Social Science Journal, 29(259).
16
Johnson, A. (1886, April 2). Proclamation on the End of the Confederate Insurrection. Transcript available at https://millercenter.org/the-presidency/
presidential-speeches/april-2-1866-proclamation-end-confederate-insurrection
17
Gumbel, A. (2015, April 13). Oklahoma City bombing: 20 years later, key questions remain unanswered. The Guardian. https://www.theguardian.com/
us-news/2015/apr/13/oklahoma-city-bombing-20-years-later-key-questions-remain-unanswered
18
Phillip Jenkins, J. (2001, September 28). Oklahoma City bombing | Facts, Motive, Timothy McVeigh, Waco, & Deaths. Britannica. https://www.
britannica.com/event/Oklahoma-City-bombing
; see also Levin, B. (1998). Patriot Movement: Past, Present, and Future (From The Future of Terrorism:
Violence in the New Millennium, 97-131, 1998, Harvey W. Kushner, ed., -- see NCJ-191292). Oce of Justice Programs.
https://www.ojp.gov/ncjrs/
virtual-library/abstracts/patriot-movement-past-present-and-future-future-terrorism-violence
19
Herbeck, D., Michel, L., Beebe, M., & Warner, G. (2001, June 10). McVeigh hints at some regrets. Bualo News. https://bualonews.com/news/
mcveigh-hints-at-some-regrets/article_f70ccbe9-5f51-530b-8f32-e91b41e305c3.html
20
The Oregonian. (2017, February 14). Oregon stando timeline: 41 days of the Malheur refuge occupation and the aftermath. Oregon Live. https://
www.oregonlive.com/portland/2017/02/oregon_stando_timeline_41_da.html
21
Prokop, A. (2015, May 14). The 2014 controversy over Nevada rancher Cliven Bundy, explained. Vox. https://www.vox.com/2014/8/14/18080508/
nevada-rancher-cliven-bundy-explained
22
The Oregonian, supra n. 20.
23
Boone, R. (2021, January 7). Armed statehouse protests set tone for US Capitol insurgents. AP News. https://apnews.com/article/election-2020-
coronavirus-pandemic-oregon-elections-idaho-688fc8894f44992487bb6ee45e9abd77
24
Sullivan, T. & Geller, A. (2020, November 7). Increasingly normal: Guns seen outside vote-counting centers. AP News. https://apnews.com/article/
protests-vote-count-safety-concerns-653dc8f0787c9258524078548d518992
25
Norton, T. (2022, October 27). Did Armed Vigilantes Guarding Ballot Boxes Break the Law? Experts Weigh in. Newsweek. https://www.newsweek.com/
did-armed-vigilantes-guarding-ballot-boxes-break-law-experts-weigh-1755196; see also Whitehurst, L. (2022, October 31). Justice Department raises
concern about armed people at Arizona ballot boxes. PBS. https://www.pbs.org/newshour/politics/justice-department-concerned-about-armed-
people-at-arizona-ballot-boxes
26
So, L. (2021, June 11). Trump-inspired death threats are terrorizing election workers. Reuters. https://www.reuters.com/investigates/special-report/
usa-trump-georgia-threats/
27
Id.
28
Id.
29
Id.
30
So, L. & Szep, J. (2021, September 8). Threatened U.S. election workers get little help from law enforcement. Reuters. https://www.reuters.com/
investigates/special-report/usa-election-threats-law-enforcement/
31
Id.
32
Wire, S. D. (2021, September 20). Threats against members of Congress are skyrocketing. It’s changing the job. Los Angeles Times. https://www.
latimes.com/politics/story/2021-09-20/threats-members-of-congress
, noting that the Sergeant of Arms for the House of Representatives, Paul D.
Irving, wrote to Congress in 2017 that United States Capitol Police investigated approximately 902 threatening communications against Members of
Congress in 2016.
33
Gardner, A. & Rosenzweig, D. (2023, January 17). New details emerge about plot to shoot at New Mexico Democrats’ homes. Washington Post. https://
www.washingtonpost.com/politics/2023/01/17/solomon-pea-shooting-new-mexico/
34
Nguyễn, T. (2023, April 13). California lawmakers cancel session after police say a man made ‘credible threats’ against Capitol. PBS. https://www.pbs.
org/newshour/nation/california-lawmakers-cancel-session-after-police-say-a-man-made-credible-threats-against-capitol
35
Reilly, R. J. (2023, June 30). Jan. 6 defendant arrested near Obama’s home had guns and 400 rounds of ammunition in his van. NBC News. https://
www.nbcnews.com/politics/justice-department/jan-6-defendant-arrested-obamas-home-guns-400-rounds-ammunition-van-rcna92094
36
United States Capitol Police. (2023, January 17). USCP Threat Assessment Cases for 2022 | United States Capitol Police. Capitol Police. https://www.
uscp.gov/media-center/press-releases/uscp-threat-assessment-cases-2022, including the 902 figure from 2016 from the Sergeant of Arms for the
House of Representatives, Paul D. Irving’s, letter to Congress in 2017, https://saos.fec.gov/aodocs/201707R_1.pdf.
Defending Democracy: Addressing the Dangers of Armed Insurrection
29
37
Schouten, F. (2022, September 1). Alarm grows as more election workers leave their posts ahead of Election Day. CNN. https://www.cnn.
com/2022/09/01/politics/election-workers-ocials-harassment-kentucky-texas/index.html
38
Brennan Center for Justice & Benenson Strategy Group. (2022, March 10). Local Election Ocials Survey. Brennan Center for Justice. https://www.
brennancenter.org/our-work/research-reports/local-election-ocials-survey-march-2022
39
Brennan Center for Justice & Benenson Strategy Group. (2023, April 25). Local Election Ocials Survey. Brennan Center for Justice. https://www.
brennancenter.org/our-work/research-reports/local-election-ocials-survey-april-2023
40
Bridging Divides Initiative & The Anti-Defamation League Center on Extremism. (2022, October 22). Threats and Harassment Against Local Ocials
Dataset. Bridging Divides Initiative. https://bridgingdivides.princeton.edu/THD
41
Tran, A. B., O’Harrow, R., & Hawkins, D. (2021, April 12). Domestic terrorism data shows right-wing violence on the rise. Washington Post. https://www.
washingtonpost.com/investigations/interactive/2021/domestic-terrorism-data/?itid=lk_interstitial_manual_21
42
Miller, C. & Kieer, C. (2023, June 6). Introduction: 2022 The Year in Hate and Extremism Comes to Main Street. Southern Poverty Law Center. https://
www.splcenter.org/year-hate-extremism-2022/introduction
43
Wintemute, G., et al. (2022). Views of American Democracy and Society and Support for Political Violence: First Report from a Nationwide Population-
Representative Survey. medRxiv. https://doi.org/10.1101/2022.07.15.22277693
44
Id.
45
Id.
46
Id.
47
Id.
48
Skelton, G. (2022, November 3). Skelton: Survey shows growing acceptance of political violence. Los Angeles Times. https://www.latimes.com/
california/story/2022-11-03/skelton-uc-davis-political-violence-study
49
Filindra, A., et al. (2021). American Identity, Guns, and Political Violence in Black and White: A Report Based on a New National Survey. University of
Illinois Chicago. https://pols.uic.edu/wp-content/uploads/sites/273/2021/06/Guns-and-Violence-in-America-Report-6.17.21.pdf
50
Anti-Defamation League Center on Extremism. (2023, February 22). Murder and Extremism in the United States in 2022. ADL. https://www.adl.org/
resources/report/murder-and-extremism-united-states-2022
51
Jones, S. & Kishi, R. (2022, November 23). UPDATE | Fact Sheet: Anti-LGBT+ Mobilization in the United States. ACLED. https://acleddata.
com/2022/11/23/update-fact-sheet-anti-lgbt-mobilization-in-the-united-states/
52
Oce of the Director of National Intelligence. (2021, March 17). Unclassified Summary of Assessment on Domestic Violent Extremism. Oce of the
Director of National Intelligence. https://www.dni.gov/files/ODNI/documents/assessments/UnclassSummaryofDVEAssessment-17MAR21.pdf
53
Id.
54
White House National Security Council. (2021, June 15). National Strategy for Countering Domestic Terrorism. The White House. https://www.
whitehouse.gov/wp-content/uploads/2021/06/National-Strategy-for-Countering-Domestic-Terrorism.pdf. The federal government classifies
“domestic terrorism” as “activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any
State; appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to
aect the conduct of a government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the
United States.” 18 U.S.C.A. § 2331(5).
55
See White, J. B. (2023, January 27). New video, audio show attack on Paul Pelosi in excruciating detail. Politico. https://www.politico.com/
news/2023/01/27/paul-pelosi-attack-video-released-00079899; Knutson, J. (2023, February 6). DOJ charges 2 over alleged “racially motivated” plot
to attack power stations. Axios. https://www.axios.com/2023/02/06/maryland-power-grid-attack-doj-arrests
56
Jones, S. G., Doxsee, C., & Harrington, N. (2020, June 17). The Escalating Terrorism Problem in the United States. CSIS. https://www.csis.org/analysis/
escalating-terrorism-problem-united-states
57
Anti-Defamation League. (2019, August 8). Two Years Ago, They Marched in Charlottesville. Where Are They Now? ADL. https://www.adl.org/blog/
two-years-ago-they-marched-in-charlottesville-where-are-they-now
58
U.S. Department of Homeland Security. (2020, October 6). Homeland Threat Assessment October 2020. U.S. Department of Homeland Security.
http://www.dhs.gov/sites/default/files/publications/2020_10_06_homeland-threat-assessment.pdf
59
Miller, C. & Kieer, C. , supra n. 42.
60
See e.g. Gregory P. Magarian, Speaking Truth to Firepower: How the First Amendment Destabilizes the Second, 91 Tex. L. Rev. 49, 95 (2012)
(“[I]nsurrection short-circuits political debate in order to impose on the polity the insurrectionists’ justification for violence. Even keeping arms
to enable insurrection would undermine debate by fostering a climate of mistrust and fear.”); Katlyn E. DeBoer, Clash of the First and Second
Amendments: Proposed Regulation of Armed Protests, 45 Hastings Const. L.Q. 333, 355 (2018) (“The United States has a very high prevalence of
gun violence, engendering very reasonable fear in those viewing armed protests; there is an abundance of people in America willing to escalate to
shooting during a dispute, which may then chill opposition against armed protesters out of fear of prompting the pull of a trigger.”); Joseph Blocher,
Reva B. Siegel, When Guns Threaten the Public Sphere: A New Account of Public Safety Regulation Under Heller, 116 Nw. U. L. Rev. 139, 188–89 (2021)
(“In various contexts, the threat of gun violence undoubtedly chills the exercise of rights, depriving Americans of the security to speak, protest,
learn, shop, pray, and vote.”); Palmer, D., & Zick, T. (2021, October 27). How Firearms Threaten Public Protest. The Atlantic. https://www.theatlantic.
com/ideas/archive/2021/10/second-amendment-first-amendment/620488/ (“The increased risk of violence from open carry is enough to have a
meaningful “chilling eect” on citizens’ willingness to participate in political protests.”); Franks, M. A (2019). The Cult of the Constitution. Stanford
University Press.
61
Darrell A.H. Miller, Guns As Smut: Defending the Home-Bound Second Amendment, 109 Colum. L. Rev. 1278, 1310 (2009).
62
American Bar Association Standing Committee on Gun Violence, et al. (2021, July 23). Opposition to Guns in Polling Places. American Bar Association.
https://www.americanbar.org/groups/public_interest/gun_violence/policy/21m111/
63
Franks, M. A. (2019). The Cult of the Constitution (p. 125). Stanford University Press.
64
The Armed Conflict Location & Event Data Project. (2022, January 5). Fact Sheet: Updated Armed Demonstration Data Released A Year After the 6
January Insurrection Show New Trends. ACLED. https://acleddata.com/2022/01/05/updated-armed-demonstration-data-released-a-year-after-the-
6-january-insurrection-show-new-trends/
65
Id.
66
Palmer, D. (2021, May 28). Fired Up or Shut Down: The Chilling Eect of Open Carry on First Amendment Expression at Public Protests at 54 (Doctoral
thesis, Northeastern University)(ProQuest). Available from ProQuest Dissertations & Theses Global. https://www.proquest.com/dissertations-theses/
fired-up-shut-down-chilling-eect-open-carry-on/docview/2565084591/se-2?accountid=11752.
67
Id. at 142.
68
Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309 (1998).
69
Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487 (2004).
70
Robert Shalhope, The Ideological Origins of the Second Amendment, 69 J. Am. History 599, 600 (1982).
71
See generally, Richard Kohn, Eagle and Sword: The Federalists and the Creation of the Military Establishment in America, 1783-1802, 3-9 (1975) and
Richard Kohn, The Constitution and National Security: The Intent of the Framers, in The United States Military Under the Constitution of the United
States 1789-1989, 61 (Richard H. Kohn ed., 1991), noting how colonial Americans distrusted professional militaries, given their experience with the
standing armies of the British. See also Dunlap infra n. 74 at 646-649.
72
Paul Finkelman, “A Well Regulated Militia”: The Second Amendment in Historical Perspective, 76 Chi.-Kent L. Rev. 195 (2000).
73
Solender, A. (2021, May 28). Gaetz Tells Supporters Second Amendment Is For ‘Armed Rebellion Against The Government’. Forbes. https://
www.forbes.com/sites/andrewsolender/2021/05/28/gaetz-tells-supporters-2nd-amendment-is-for-armed-rebellion-against-the-
government/?sh=29ba2123196f
74
Cummings, W. (2018, March 22). For many Americans, the Second Amendment is a defense against their own government. USA Today. https://www.
usatoday.com/story/news/politics/2018/03/22/many-americans-second-amendment-defense-against-their-own-government/379273002/
75
Charles J. Dunlap, Jr., Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment, 62 Tenn. Law Rev. 643, 645
(1995).
76
Welna, D. (2013, April 8). Some Gun Control Opponents Cite Fear Of Government Tyranny. NPR. https://www.npr.org/sections/
Defending Democracy: Addressing the Dangers of Armed Insurrection
30
itsallpolitics/2013/04/08/176350364/fears-of-government-tyranny-push-some-to-reject-gun-control
77
Nelson, L. (2016, August 9). Trump in trouble over ‘Second Amendment’ remark. Politico. https://www.politico.com/story/2016/08/trump-clinton-
second-amendment-judges-guns-226833
78
Connor, supra n. 15.
79
George Washington, President of the United States. (1794, November 19). Sixth Annual Message to Congress.
80
U.S. CONST. art. I, sec. 8, cl. 15 (emphasis added).
81
U.S. CONST. art. I, sec. 8, cl. 16; see also U.S. CONST. art. III, sec. 3, cl. 1, defining “Treason against the United States” as “only in levying War against
them,” which is eectively what an armed insurrection is.
82
The Federalist No. 46, at 321 (James Madison).
83
Id.
84
U.S. CONST. amend II; see also Lawrence Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. Am. Hist. 22-23
(1984), examining historical evidence to support the Second Amendment as a collective right to communal, as opposed to individual, resistance.
85
United States v. Miller, 307 U.S. 174, 178 (1939).
86
Presser v. Illinois, 116 U.S. 252, 268 (1886).
87
Id. at 267.
88
District of Columbia v. Heller, 554 U.S. 570, 598-600, 635 (2008).
89
Id. at 630.
90
Id. at 627-629.
91
Carl T. Bogus, Heller and Insurrectionism, 59 Syracuse L. Rev. 253, 265 (2008).
92
Christopher J. Peters, What Are Constitutional Rights for? The Case of the Second Amendment, 68 Okla. L. Rev. 433, 475 (2016).
93
See The Armed Conflict Location & Event Data Project, supra n. 63.
94
See generally The Johns Hopkins Center for Gun Violence Solutions. (2022, April). Public carry of firearms. Johns Hopkins Bloomberg School of
Public Health. https://publichealth.jhu.edu/departments/health-policy-and-management/research-and-practice/center-for-gun-violence-solutions/
solutions/public-carry-of-firearms
95
See Joseph Blocher & Reva B. Siegel, When Guns Threaten the Public Sphere: A New Account of Public Safety Regulation Under Heller, 116
Northwestern University Law Review 139-201 (2021).
96
See Lithwick, D. & Turner, C. (2013, November 12). It’s Not My Gun. It’s “Free Speech.” The Alarming Rise of “Open Carry” Demonstrations. Slate
Magaine. https://slate.com/news-and-politics/2013/11/open-carry-demonstrations-is-carrying-a-gun-to-a-protest-protected-by-the-first-
amendment.html; Yzaguirre, T. (2017, August 8). Why gun owners should use the First Amendment to protect open carry. The Hill. https://thehill.com/
blogs/pundits-blog/civil-rights/345675-why-gun-owners-should-use-the-first-amendment-to-protect-open; see also Appendix 1.
97
U.S.C.A. Const.Amends. 1.
98
Chesney v. City of Jackson, 171 F. Supp. 3d 605, 616-19 (E.D. Mich. 2016); see also Baker v. Schwarb, 40 F. Supp. 3d 881, 894-95 (E.D. Mich. 2014).
99
See Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846 (1992), Galena v. Leone, 638 F.3d 186 (3d Cir. 2011), and Helms v. Zubaty, 495 F.3d 252 (6th Cir.
2007), respectively.
100
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 632 (1943). See generally, Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
89 S. Ct. 733, 21 L. Ed. 2d 731 (1969).
101
United States v. O’Brien, 391 U.S 367, 376 (1968).
102
The Associated Press. (2020, January 19). Pro-gun rally by thousands in Virginia ends peacefully. AP News. https://apnews.com/article/ap-top-news-
richmond-virginia-charlottesville-us-news-2c997c92fa7acd394f7cbb89882d9b5b
103
Kendall Burchard, Your ‘Little Friend’ Doesn’t Say ‘Hello’: Putting the First Amendment Before the Second in Public Protests, 104 Va. L. Rev. Online 30,
35 (2018).
104
Id. at 36-38.
105
See, Nordyke v. King, 319 F.3d 1185, 1190 (9th Cir. 2003); Burgess v. Wallingford, 2013 WL 4494481, at *9 (D.Conn. May 15, 2013); Baker v. Schwarb,
40 F. Supp. 3d 881, 894-95 (E.D. Mich. 2014); Northrup v. City of Toledo Police Div., 58 F. Supp. 3d 842, 848 (N.D. Ohio 2014), armed in part,
reversed in part and remanded sub nom. Northrup v. City of Toledo Police Dep’t, 785 F.3d 1128 (6th Cir. 2015); Deert v. Moe, 111 F. Supp. 3d 797 (W.D.
Mich. 2015); Chesney v. City of Jackson, 171 F. Supp. 3d 605, 616-19 (E.D. Mich. 2016).
106
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), quoting Clark v. Community for Creative Non–Violence, 468 U.S. 288, 293 (1984).
107
See Miller, 307 U.S. at 178.
108
District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010); New York Rifle and Pistol Association v. Bruen,
142 S.Ct. 2111 (2022).
109
Heller, 554 U.S. at 635.
110
Id. at 626.
111
Id. at 626-627.
112
Id. at 627 n.26.
113
McDonald, 561 U.S. at 750.
114
Id. at 785.
115
Id. at 786.
116
See, Eric Ruben, Joseph Blocher, From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller, 67 Duke L.J. 1433,
1496 (2018).
117
Bruen, 142 S.Ct. at 2111.
118
Id. at 2127, 2131.
119
Id.
120
See Jacob Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History (Jan. 23, 2023), Duke Law Journal, Vol. 73
(forthcoming), Pepperdine University Legal Studies Research Paper No. 2023/7, Available at SSRN: https://ssrn.com/abstract=4335545 or http://
dx.doi.org/10.2139/ssrn.4335545; See also Charles, J. (2023, February 15). The Founders didn’t disarm domestic abusers: Does that mean we can’t?
The Hill. https://thehill.com/opinion/judiciary/3859203-the-founders-didnt-disarm-domestic-abusers-does-that-mean-we-cant/ .
121
See Giords Law Center. (2023). Concealed Carry. Giords. https://giords.org/lawcenter/gun-laws/policy-areas/guns-in-public/concealed-carry/
and Giords Law Center. (2023). Open Carry. Giords. https://giords.org/lawcenter/gun-laws/policy-areas/guns-in-public/open-carry/
122
Fauerbach, G. & Youngblood, A. (2022, August 22). State Firearm Law Navigator. RAND Corporation. https://www.rand.org/research/gun-policy/law-
navigator.html#carrying-a-concealed-weapon
123
Donohue, J., et al. (2019). Right-to-Carry Laws and Violent Crime: A Comprehensive Assessment Using Panel Data and a State-Level Synthetic Control
Analysis, 16, J. Empirical Legal Studies, 198, 200.
124
See Donohue, J., et al. (2022). More Guns, More Unintended Consequences: The Eects of Right-to-Carry on Criminal Behavior and Policing in US
Cities, National Bureau of Economic Research, available at http://www.nber.org/papers/w30190; Donohue, J., et al. (2019). Right-to-Carry Laws
and Violent Crime: A Comprehensive Assessment Using Panel Data and a State-Level Synthetic Control Analysis, 16, J. Empirical Legal Studies,
198, https://doi.org/10.1111/jels.12219; Doucette, M., Crifasi, C., and Frattaroli, S. (2019). Right-to-Carry Laws and Firearm Workplace Homicides:
A Longitudinal Analysis (1992–2017). American Journal of Public Health 109, 1747-1753, https://doi.org/10.2105/AJPH.2019.305307, Doucette, M.,
Ward, J., McCourt, A., et al. (2022). Ocer-Involved Shootings and Concealed Carry Weapons Permitting Laws: Analysis of Gun Violence Archive
Data, 2014–2020. J Urban Health 99, 373–384, https://doi.org/10.1007/s11524-022-00627-5, and Doucette, M., et al. (2022). Impact of Changes
to Concealed-Carry Weapons Laws on Fatal and Nonfatal Violent Crime, 1980–2019, American Journal of Epidemiology, Volume 192, Issue 3, March
2023, 342–355, https://doi.org/10.1093/aje/kwac160.
125
See Cal. Penal Code §§ 26350, 25850; D.C. Code § 22-4504.01; Fla. Stat. Ann. § 790.053(1); 720 Ill. Comp. Stat. 5/24-1(a)(10); N.Y. Penal Law §
265.01(1).
126
See Cal. Penal Code § 26400(a); D.C. Code § 22-4504.01; Fla. Stat. Ann. § 790.053(1); 720 Ill. Comp. Stat. 5/24-1(a)(10); Mass. Gen. Laws ch. 140, §§
129C, 131; Minn. Stat. § 624.7181, subd. 2, Minn. Stat. § 624.7181, subd. 1(b)(3); N.J. Rev. Stat. § 2C:39-5(c).
Defending Democracy: Addressing the Dangers of Armed Insurrection
31
127
See The Armed Conflict Location & Event Data Project, supra n. 64.
128
Joseph Blocher & Reva Siegel, When Guns Threaten the Public Sphere: A New Account of Public Safety Regulation Under Heller, 116 Nw. U. L. Rev. 1, 3
(2021).
129
Note that “open carry” refers to the visible display of firearms in public and “concealed carry” refers to the possession of firearms in public that are
hidden on the carrier’s person.
130
See Gould v. Morgan, 907 F.3d 569 (1st Cir. 2018); Kachalsky v. County of Westchester, 701 F.3d 81 (2nd Cir. 2012); Drake v. Filko, 724 F.3d 426 (3rd
Cir. 2013); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); Young v. Hawaii, 992 F.3d 765 (9th Cir. 2021).
131
Bruen, 142 S.Ct. at 2138 n. 9 (internal quotations omitted).
132
Id. at 2161 (Kavanaugh, B., concurring).
133
Supra n. 15-59 and accompanying text.
134
Supra n. 68-92 and accompanying text.
135
Georgetown Law, Prohibiting Private Armies at Public Rallies: A Catalog of Relevant State Constitutional and Statutory Provisions, Georgetown Law
Institute for Constitutional Advocacy and Protection, 3d ed., 8 (Sep. 2020).
136
Id. at 9.
137
Id; see e.g., N.Y. Mil. Law § 240 (McKinney)(“No body of men other than the organized militia and the armed forces of the United States except
such independent military organizations as were on the twenty-third day of April, eighteen eighty-three and now are in existence and such other
organizations as may be formed under the provisions of this chapter, shall associate themselves together as a military company or other unit or
parade in public with firearms in any city or town of this state.”).
138
See Vietnamese Fishermen’s Ass’n v. Knights of the Ku Klux Klan, 543 F. Supp. 198 (S.D. Tex. 1982).
139
Georgetown Law, supra n. 135 at 10.
140
Id. at 11.
141
Heller, 554 U.S. at 620, quoting Presser v. Illinois, 116 U.S. 252, 264-65 (1886).
142
See Beckett, L. (2021, January 14). US police three times as likely to use force against leftwing protesters, data finds. The Guardian. https://
www.theguardian.com/us-news/2021/jan/13/us-police-use-of-force-protests-black-lives-matter-far-right
, and Shepherd, K. (2020, August 22).
Portland police stand by as Proud Boys and far-right militias flash guns and brawl with antifa counterprotesters. Washington Post. https://www.
washingtonpost.com/nation/2020/08/22/portland-police-far-right-protest/
143
See German, M. (2020, August 27). Hidden in Plain Sight: Racism, White Supremacy, and Far-Right Militancy in Law Enforcement. Brennan Center for
Justice. https://www.brennancenter.org/our-work/research-reports/hidden-plain-sight-racism-white-supremacy-and-far-right-militancy-law; see
also Jones & Doxsee, supra n. 56.
144
Rogers, K. (2023, March 21). States Are Cracking Down On Militias — Except For Idaho. FiveThirtyEight. https://fivethirtyeight.com/features/state-
militia-laws/
145
Joseph Blocher, Samuel W. Buell, Jacob D. Charles, Darrell A.H. Miller, Pointing Guns, 99 Tex. L. Rev. 1173, 1175 (2021).
146
Collman, A. (2020, October 12). Armed Groups Say They Will Show up at Polling Sites on Election Day. Business Insider. https://www.businessinsider.
com/armed-groups-planning-to-monitor-polling-sites-on-election-day-2020-10
147
For example, Section 11 of the Voting Rights Act makes it unlawful to either successfully or attempt to “intimidate, threaten, or coerce” someone from
“voting or attempting to vote” or “for urging or aiding any person to vote or attempt to vote.” 52 U.S.C. § 10307(b). However, the intimidation must be
“intended to deter individuals from exercising their voting rights.” Nat’l Coal. on Black Civic Participation v. Wohl, 512 F. Supp. 3d 500, 509 (S.D.N.Y.
2021).
148
Blocher et al., supra n. 145 at 1182.
149
See Ariz. Rev. Stat. Ann. § 13-3102 (A)(11); Cal. Elec. Code § 18544(a); D.C. Code Ann. § 7-2509.07(a)(5); Del. Code Ann. tit. 11, § 1457A; Fla. Stat.
Ann. § 790.06(12)(a)(6); Ga. Code Ann. § 16-11-127(b)(7); La. Stat. Ann. § 18:1461.7(C)(3); La. Stat. Ann. § 40:1379.(N)(4); Md. Code Ann., Crim. Law §
4-203; N.J.S.A. 2C:58-4.6; N.Y. Penal Law § 265.01-e(2); Tex. Penal Code Ann. § 46.03(a)(2); Va. Code Ann. § 24.2-604(A)(iv).
150
See Miss. Code. Ann. § 45-9-101 (13); Mo. Ann. Stat. § 571.215(1)(2); Neb. Rev. Stat. Ann. § 69-2441(1)(a); S.C. Code Ann. § 23-31-215(M)(3).
151
Colo. Rev. Stat. § 1-13-724; see also Duggan, K. (2020, October 1). After 7 Years of Voting by Mail, Colorado Voters Aren’t Taken in By Absentee Ballot
Drama. The Coloradoan. https://www.coloradoan.com/story/news/2020/10/01/colorado-mail-in-ballot-absentee-voting-how-state-perfected-
system/3572176001/
152
See Giords Law Center. (2023). Location Restrictions. Giords. https://giords.org/lawcenter/gun-laws/policy-areas/guns-in-public/location-
restrictions/ and Giords Law Center. (2023). Guns in Schools. Giords. https://giords.org/lawcenter/gun-laws/policy-areas/guns-in-public/guns-
in-schools/#state
153
Heller, 554 U.S. at 626 (emphasis added).
154
Bruen, 142 S.Ct. at 2133.
155
See Frey v. Nigrelli, No. 21 CV 05334 (NSR), 2023 WL 2473375 (S.D.N.Y. Mar. 13, 2023); Miller v. Smith, No. 22-1482, 2023 WL 334788 (7th Cir. Jan. 20,
2023); United States v. Tallion, No. CR 8:22-PO-01758-AAQ, 2022 WL 17619254 (D. Md. Dec. 13, 2022); Antonyuk v. Hochul, No. 122CV0986GTSCFH,
2022 WL 5239895 (N.D.N.Y. Oct. 6, 2022).
156
Currently, 21 states and the District of Columbia have passed Extreme Risk laws.
157
The specific language varies by state, with ex parte orders having the additional criteria of the risk being immediate or in the near future. See
Bloomberg American Health Initiative. (2023). Extreme Risk Protection Order: A Tool to Save Lives. Johns Hopkins Bloomberg School of Public Health.
https://americanhealth.jhu.edu/implementERPO for more information on the extreme risk laws of each state.
158
See Johns Hopkins Center for Gun Violence Solutions (2023). ERPOs and Due Process. Johns Hopkins Bloomberg School of Public Health. https://
publichealth.jhu.edu/sites/default/files/2023-04/erpo-due-process-march-2023-final.pdf.
159
See Wintemute, G., et al. (2019). Extreme Risk Protection Orders Intended to Prevent Mass Shootings: A Case Series. Annals of internal medicine,
171(9), 655–658. https://doi.org/10.7326/M19-2162, finding that California’s extreme risk law may have prevented mass shootings by being issued
against persons demonstrating clear intent to commit them.
160
See Kivisto, A., & Phalen, P. (2018). Eects of Risk-Based Firearm Seizure Laws in Connecticut and Indiana on Suicide Rates, 1981-2015. Psychiatric
services (Washington, D.C.), 69(8), 855–862. https://doi.org/10.1176/appi.ps.201700250, finding that Connecticut’s and Indiana’s extreme risk laws
led to a 13.7% and 7.5% decrease in firearm suicides, respectively; and Swanson, J., et al. (2019). Criminal Justice and Suicide Outcomes with Indiana’s
Risk-Based Gun Seizure Law. The journal of the American Academy of Psychiatry and the Law, 47(2), 188–197. https://doi.org/10.29158, finding that
about one suicide was prevented for every 10 firearms removed through Indiana’s extreme risk law.
161
Pulver, D., et al. (2021, January 14). Capitol riot arrests: See who’s been charged across the U.S. USA Today. https://www.usatoday.com/storytelling/
capitol-riot-mob-arrests/
162
See McQueen, E. (2021, June 17). Examining Extremism: The Oath Keepers. CSIS. https://www.csis.org/blogs/examining-extremism/examining-
extremism-oath-keepers, detailing the origins, ideologies, and high profile incidents involving the Oath Keepers.
163
See Thompson, J. (2021, June 30). Examining Extremism: The Boogaloo Movement. CSIS. https://www.csis.org/blogs/examining-extremism/
examining-extremism-boogaloo-movement, detailing the origins, ideologies, and high profile incidents involving participants in the Boogaloo
Movement.
164
See Doxsee, C. (2021, August 12). Examining Extremism: The Militia Movement. CSIS. https://www.csis.org/blogs/examining-extremism/examining-
extremism-militia-movement
165
Thompson, A., Hassan, L., & Hajj, K. (2021, February 1). The Boogaloo Bois Have Guns, Criminal Records and Military Training. Now They Want
to Overthrow the Government. ProPublica. https://www.propublica.org/article/boogaloo-bois-military-training?utm_medium=social&utm_
source=twitter
166
See Haverstraw Town Police v. C.G., No. 2022-2362, 2023 WL 3557083 (N.Y. Sup. Ct. Apr. 20, 2023); Hines v. Doe, No. 951-23, 2023 WL 2320234 (N.Y.
Sup. Ct. Mar. 1, 2023); Redington v. State, 992 N.E.2d 823, 833 (Ind. Ct. App. 2013); Hope v. State, 163 Conn. App. 36, 43, 133 A.3d 519, 525 (2016).
167
See Cipollone v. Liggett Group. Inc., 505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992).
168
National League Of Cities. (2017). City Rights In An Era Of Preemption: A State-by State Analysis 3, 10.
Defending Democracy: Addressing the Dangers of Armed Insurrection
32
169
See Richard C. Schragger, The Attack on American Cities, 96 TEX. L. REV. 1163, 1166 (2018).
170
Simon, Rachel, State Preemption of Local Gun Regulations (March 15, 2020). Cardozo Law Review, Vol. 43, 2022, Available at SSRN: https://ssrn.com/
abstract=3623529
or http://dx.doi.org/10.2139/ssrn.3623529.
171
Kristin A. Goss, Policy, Politics, and Paradox: The Institutional Origins of the Great American Gun War, 73 Fordham Law Rev. 681–714 (2004).
172
See N.M. Const. art. II, § 6; Ark. Code Ann. § 14-54-1411; Ind. Code § 35-47-11.1-2; Iowa Code Ann. § 724.28; Ky. Rev. Stat. Ann. § 65.870; Mich.
Comp. Laws § 123.1102; Or. Rev. Stat. § 166.170; 11 R.I. Gen Laws § 11-47-58; S.D. Codified Laws §§ 7-18A-36, 8-5-13, 9-19-20; Utah Code Ann. § 76-
10-500; Vt. Stat. Ann. tit. 24, § 2295.
173
Simon, supra n. 170 at 5.
174
Joseph Blocher, The Biggest Legal Obstacle to Gun Regulation: State Preemption Laws, Not the Second Amendment, 111 American Journal of Public
Health 1192-1193 (2021).
175
Elinson, Z. (2021, June 19). Colorado Lets Cities Set Their Own Gun Laws, and Boulder Plans to Move Quickly. Wall Street Journal. https://www.wsj.
com/articles/colorado-lets-cities-set-their-own-gun-laws-and-boulder-plans-to-move-quickly-11624121655
176
Piazza, J. (2020) Politician Hate Speech and Domestic Terrorism, International Interactions, 46:3, 431-453.
177
Müller, Karsten and Schwarz, Carlo, From Hashtag to Hate Crime: Twitter and Anti-Minority Sentiment (2020). http://dx.doi.org/10.2139/
ssrn.3149103
178
Newman, B., et al. (2021). The Trump Eect: An Experimental Investigation of the Emboldening Eect of Racially Inflammatory Elite Communication.
British Journal of Political Science, 51(3), 1138-1159. doi:10.1017/S0007123419000590
179
Kalmoe, N. P., & Mason, L. (2022). Radical American Partisanship: Mapping Violent Hostility, Its Causes, and the Consequences for Democracy.
University of Chicago Press.
180
Id.
181
Mernyk, J., et al. (2022). Correcting inaccurate metaperceptions reduces Americans’ support for partisan violence. Proceedings of the National
Academy of Sciences of the United States of America, 119(16), e2116851119. https://doi.org/10.1073/pnas.2116851119
182
Biden, J. (2022, November 3). Remarks by President Biden on Standing up for Democracy. The White House. https://www.whitehouse.gov/briefing-
room/speeches-remarks/2022/11/03/remarks-by-president-biden-on-standing-up-for-democracy/
183
Pengelly, M. (2020, October 13). Mitt Romney decries US politics: ‘The world is watching with abject horror’. The Guardian. https://www.theguardian.
com/us-news/2020/oct/13/mitt-romney-abject-horror-us-politics-trump-biden
184
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 632 (1943).
185
United States v. O’Brien, 391 U.S 367, 376 (1968).
186
The Privileges or Immunities Clause of the Fourteenth Amendment requires states and localities to respect the civil rights of citizens in accordance
with the Constitution, including free speech; U.S.C.A. Const.Amends. 14, sec 1.
187
Texas v. Johnson, 491 U.S. 397, 404 (1989).
188
Spence v. Washington, 418 U.S. 405, 410–11 (1974).
189
Timothy Zick, Arming Public Protests, 104 Iowa L. Rev. 223, 245 (2018)(quoting Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 66, 126 S.
Ct. 1297, 1311, 164 L. Ed. 2d 156 (2006)) (emphasis added).
190
See generally Joseph Blocher et al., Pointing Guns, 99 Tex. L. Rev. 1173, 1188 (2021), noting that “[w]hile criminal law in many American jurisdictions is
reasonably clear that pointing a firearm at a person during a confrontation in public can be a crime (at least at the misdemeanor level), it is extremely
opaque—indeed, even intentionally noncommittal—about when such conduct will be a crime.”
191
Nordyke v. King, 319 F.3d 1185, 1190 (9th Cir. 2003).
192
Baker v. Schwarb, 40 F. Supp. 3d 881, 894-95 (E.D. Mich. 2014); see also Chesney v. City of Jackson, 171 F. Supp. 3d 605, 616-19 (E.D. Mich. 2016)
and Deert v. Moe, 111 F. Supp. 3d 797 (W.D. Mich. 2015).
193
Burgess v. Wallingford, 2013 WL 4494481, at *9 (D.Conn. May 15, 2013).
194
Id.
195
Northrup v. City of Toledo Police Div., 58 F. Supp. 3d 842, 848 (N.D. Ohio 2014), armed in part, reversed in part and remanded sub nom. Northrup v.
City of Toledo Police Dep’t, 785 F.3d 1128 (6th Cir. 2015).
196
See Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009).
197
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), quoting Clark v. Community for Creative Non–Violence, 468 U.S. 288, 293 (1984).
198
Id.
199
Katlyn E. DeBoer, Clash of the First and Second Amendments: Proposed Regulation of Armed Protests, 45 Hastings Const. L.Q. 333, 351-352 (2018).
200
Jessica Miles, Straight Outta SCOTUS: Domestic Violence, True Threats, and Free Speech, 74 U. Miami L. Rev. 711, 723 (2020); see Watts v. United
States, 394 U.S. 705 (1969).
201
Id.
202
See Virginia v. Black, 538 U.S. 343 (2003) (plurality opinion); Elonis v. United States, 575 U.S. 723(2015); Counterman v. Colorado, No. 22-138, 2023
WL 4187751 (U.S. June 27, 2023).
203
Counterman, 600 U.S. at *2 (U.S. June 27, 2023).
204
Id.
205
Zick, supra n. 189 at 229.
206
See VA Code Ann. §§ 19.2-152.13 - 19.2-152.17 (enacted by 2020 VA HB 674 and 2020 VA SB 240).
207
See 2020 VA SB 35; Va. Code Ann. § 15.2-915(E).
208
Alexandria, Virginia City Code § 2-3-5; Newport News, Virginia City Code § 43-3; Richmond, Virginia City Code § 19-334.1; see also Moomaw,
G. (2020, August 10). Virginia’s gun-control debate shifts to newly empowered localities. Virginia Mercury. https://www.virginiamercury.
com/2020/08/10/virginias-gun-control-debate-shifts-to-newly-empowered-localities/
209
See 2021 VA HB 2295 and 2021 VA HB 2081, respectively; Va. Code Ann. §§ 18.2-283.2, 24.2-604, 24.2-671, and 24.2-802.1.
210
Domingo, I. (2020, September 30). AG Herring outlines protections against voter intimidation after Trump urges poll watching. WSET. https://wset.
com/news/local/ag-herring-outlines-protections-against-voter-intimidation-after-trump-urges-poll-watching; AG Herring shares training video on
voter intimidation protections with Virginia’s law enforcement, election ocials. (2020, October 29). WRIC. https://www.wric.com/video/ag-herring-
shares-training-video-on-voter-intimidation-protections-with-virginia%e2%80%99s-law-enforcement-election-ocials/5983361/
211
Royal Examiner. (2021, September 1). New opinion from Attorney General Herring says firearms prohibited at early voting locations. Royal Examiner.
https://royalexaminer.com/new-opinion-from-attorney-general-herring-says-firearms-prohibited-at-early-voting-locations/
212
21-040 Va. Op. Atty. Gen. https://www.oag.state.va.us/files/Opinions/2021/21-040-Wurzer-Issued.pdf.
