With the tight margins in Congress, gun control groups are going to be looking at statehouses in friendly territory as a primary means of advancing their anti-Second Amendment agenda in 2021, and Washington State’s Alliance for Gun Responsibility has already started talking about what tops their wish list of infringements for the new year.
The biggest priority, according to executive director Renee Hopkins? Banning the open carrying of firearms at public protests.
“We really need to have common sense limits on open carry to ensure that firearms are not used to intimidate or discourage people in public demonstrations. People’s first amendment rights really cannot be jeopardized,” she added.
Democratic Senator Jaime Pedersen recently weighed in on the issue.
“We’ve had quite a few examples in the last few months of armed folks showing up at other people’s protests with the apparent intent to intimidate or threaten them from being able to exercise their first amendment rights. So I think we’re going to have a robust question about some of those incidents that we’re talking about,” he said during a policy conference earlier this month.
It’s sad but not surprising to see anti-gun activists proclaim that you should have to forfeit your Second Amendment rights while you’re exercising your freedom of speech. Unfortunately for them, the Constitution doesn’t work that way. You don’t give up one right just because you’re exercising another, but that’s exactly what gun control activists want.
As far back as March of this year, the Michael Bloomberg-funded gun control website The Trace was promoting the idea that Second Amendment rights should be curtailed during political events, though even they reluctantly recognized that courts aren’t likely to go along with such foolishness.
While some may feel that armed protesters trample on the speech rights of others, the reality is that no court would currently hold that carrying guns openly at a demonstration violates First Amendment rights to free expression and political assembly.
A First Amendment lawyer’s argument against open carry at protests would go something like this: Firearms violate the speech rights of unarmed protesters because they “chill” expression through intimidation.
But this reasoning suffers from two major problems. For one thing, freedom of speech protects individuals from government intrusion on expression, but in armed protest settings, the government is not directly involved in silencing anyone. “It’s not the government carrying the guns,” said Timothy Zick, a law professor at William and Mary Law School who has written extensively on the issue. “Indirectly, yes, the government allows people to carry guns. But it’s the individual’s decision to carry it.”
Moreover, chills on expression, which are not outright bans on speech, violate the First Amendment only under certain circumstances. Zick said, “It can be a struggle to deal with the legal concept of chill versus the human concept of it.”
Of course, the fact that their proposed ban on open carry at protests doesn’t have many friends in the judiciary doesn’t mean that gun control activists will back off their screwy idea. Sure, if the state were to approve such a ban there’d be an immediate lawsuit, but that’s no impediment for anti-gun activists. If their ban is struck down, they’ll try to tweak it slightly and bring it back in 2022, and who knows? Maybe they’d get lucky and find a judge who treats both the First and Second Amendment as privileges instead of rights. After all, North Carolina bans carrying guns during political demonstrations, and so far that law hasn’t been tossed out as unconstitutional.
The other priority for the Alliance for Gun Responsibility in Washington State is a ban on ammunition magazines that can hold more than ten rounds.
The effort has come up short in recent years, including this past session. California was able to get a law limiting so-called high capacity magazines – those with more than 10 rounds – on the books, but it was struck down as an unconstitutional violation of the second amendment in August by the 9th Circuit Court of Appeals. That does not deter Hopkins, though.
‘The California law that was struck down in the 9th Circuit earlier this year is a very expansive ban both retroactively and in future,” she pointed out. “So we really take a different approach in our policy here in Washington state. Also to note there has been a request for an en banc review in the 9th Circuit. And so you know, it will be interesting to see whether the full court does decide to take it up and if they do, then of course, the previous ruling will no longer stand.”
Gun rights advocates will fight against any such ban on large magazines, which they consistently point out covers most magazines these days. Dave Workman at GunMag.com says gun rights advocates will also push back on a proposal to require background checks on all ammunition, which they believe amounts to a de facto registry.
