'Open Carry' Laws Are Designed to Intimidate and Undermine Public Order, and Can Be Overturned

Just four days after the nation saw how scores of heavily armed men hindered police seeking to preserve public order in Charlottesville, the people of San Antonio got another taste of what “open carry” laws mean for the freedom of expression.

When the city council opened debate on a proposal to relocate Confederate statues from San Antonio’s Travis Park, about 10 men showed up wearing kevlar vests and carrying assault rifles. According to the Rivard Report, a local online news site, the men were escorting Brandon Burkhart, vice president of This Is Texas Freedom Force (“committed to protecting Texas and Texas history").

In his comments, Burkhart did not conceal his intention: to personally intimidate the two council members, Roberto Treviño and William “Cruz” Shaw, both people of color, who sponsored the relocation proposal:

“I’m going to address you guys again, especially you two, Shaw and Treviño,” Burkhart said, his voice echoing through the chamber. “Do you guys see the problems that you’re causing? … Do you know the death threats that I’ve received?”

The two councilmen rejected Burkhart’s threats as "sad" and inappropriate for San Antonio, but there is no disputing that “open carry” intimidation tactics are now becoming normalized, much to the dismay of elected officials and law enforcement officials responsible for keeping the peace.

"In a new age of domestic terrorism, we need to re-examine the balance that we strike between public safety and violent protests," said Charlottesville mayor Mike Signer in the wake of violent protests that led to the death of Heather Heyer.

"First, the danger is too great of a catastrophic incident," Signer said. "Second, it is intimidating beyond any reasonable standard for citizens, particularly members of vulnerable communities."

When the American Civil Liberties Union reexamined the issue, it announced it would no longer defend the First Amendment rights of gun-carrying protest groups.

History and Eroding Norms

A decade ago, a protester carrying a weapon openly at a political rally for presidential candidate Barack Obama was arrested, and the incident received extensive news coverage.

Since then, gun carriers have become much more assertive and city officials much more accommodating—to the point of lunacy. In 2014, a group of open carry advocates in Texas brought their guns to Dealey Plaza, where President Kennedy was assassinated, apparently in the belief that displaying guns in a place where a liberal president was murdered would somehow advance their cause.

They were correct. Texas subsequently passed an open carry law that enabled Burkhart to issue his threats with 15 police officers standing by. Art Acevedo, police chief of Austin, Texas commented, "Common sense has officially died."

And when common sense dies, authoritarians are emboldened.

"Gun carriers at the so-called 'Unite the Right' rally acted more like a paramilitary force than as individual demonstrators," wrote David Frum in the Atlantic. "They wore similar pseudo-military outfits, including body armor. They took tactical formations to surround the site of the expected confrontation" over Confederate statues.

Not coincidentally, the public display of weapons has been a consistent feature of America’s white supremacist movements for 150 years.

After the Civil War, the reconstructed Southern states “struggled to recruit and arm biracial militias and police, while white supremacist paramilitary forces terrorized and murdered—and disarmed—freedmen and their (few) white allies, with the goal, ultimately achieved, of seizing state power for the white supremacist-dominated Democratic Party,” wrote Charles Lane of the Washington Post last summer.

“When we look at a state like Virginia, where the white supremacist rally was held, and which allows the open carry of firearms on its streets, we begin to see how guns coupled with racism, misogyny, sexism, homophobia or transphobia can be used to intimidate marginalized Americans,” wrote Sharon Risher, a Texas trauma nurse who lost her mother and two cousins to a racist assassin in the Charleston AME church killings.

“Taking to town squares to yell past your political opponents is a rich American custom,” wrote John Feinblatt, executive director of Every Town for Gun Safety, which is funded by former New York mayor Michael Bloomberg. “Those public spaces and our rights to peaceable assembly and free speech make democratic self-government possible.”

“Open carry is not part of that tradition, and its history is that of a tool used for specifically racist ends,” Feinblatt went on in a New York Times opinion column. “It corrodes our public spaces and infringes on our rights. It introduces terror and intimidation, where dialogue and debate should prevail. And until we close the open-carry loophole in our laws, the armed intimidation we saw in Charlottesville will continue to serve as a tactic for more extremists in more of our cities and towns.”

There is nothing in constitutional law that protects an absolute right to carry a gun openly, notes the Southern Poverty Law Center:

“In the Supreme Court’s seminal opinion in the Heller case, the late Justice Antonin Scalia emphasized that 'the right secured by the Second Amendment is not unlimited.' State regulations, for example, prohibiting 'the carrying of firearms in sensitive places such as schools and government buildings,' Justice Scalia explained, were undoubtedly constitutional.

"Lower courts have ruled that 'sensitive places' include national parks, university football games, post offices, vehicles and aircraft."

In Washington, D.C., the law bans carrying a permitted concealed gun within 1,000 feet of a protest, on public transportation or anywhere near the White House, National Mall or U.S. Capitol.

“States are not powerless to change their gun laws,” says the SPLC. “All it takes is the courage to stand up to the gun lobby and the common sense to know that guns and public protests do not mix. Indeed, the events in Charlottesville... [two] weekend[s ago] prove that the combination is a recipe for disaster. Mayors and other local officials should demand that state legislatures temper their open-carry laws with a little common sense.”

As for what happens when a black man exercises his rights under an open carry law, watch this video.

To see the law on open carry in your state, check the Gun Law Navigator.

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