Over the past couple weeks, North Carolina has joined the growing list of states in which armed demonstrators have gathered to express their opposition to virus-related restrictions on economic activity and social gatherings, or to more generally express their opposition to any restrictions on their Second Amendment rights. Dressed in patriotic or military-style gear, and armed with a variety of openly displayed handguns, rifles, or even an (inert) AT-4 anti-tank weapon, these groups have processed along city streets and sidewalks or gathered in public locations like a historic cemetery and a downtown restaurant.
Now, particularly in light of an incident over the weekend where two local attorneys walking with their children felt threatened by a demonstrator wielding a large pipe wrench, a lot of people are asking the same question: are these armed demonstrations legal?
The question seems simple. The answer is more complicated.
A. Background and Related Posts
We should start by distinguishing this issue from the much larger bodies of law related to protests and firearms in general. My colleagues have written a number of posts on those topics over the years that readers may want to revisit.
1) Other Crimes Committed at a Demonstration
Protests and public demonstrations are permitted, of course, but if a participant engages in other criminal conduct during the course of the event (e.g., assault, communicating threats, trespassing, destruction of property, obstructing traffic, or resisting arrest), then he or she may be prosecuted for that offense. See Jeff Welty’s post on that topic here.
2) Going Armed to the Terror of the Public
Anyone armed with an unusual or deadly weapon who goes about on the public highways in a manner to, and for the purpose of, terrifying others commits the common law offense of going armed to the terror of the public, regardless of whether a demonstration or protest is also taking place. See Jessica Smith’s post on that topic here.
Frightened residents who encounter what looks like an armed militia posted up on their neighborhood sidewalks or public spaces might reasonably assume that this offense would apply, but the limited number of cases interpreting this offense have typically required some act beyond merely possessing and openly carrying a gun, such as actually discharging it with the intent of terrorizing others:
[I]t is to be remembered that the carrying of a gun per se constitutes no offence. For any lawful purpose — either of business or amusement — the citizen is at perfect liberty to carry his gun. It is the wicked purpose — and the mischievous result — which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm, a peaceful people.
State v. Huntley, 25 N.C. 418 (1843). On the other hand, at least one case suggests that when a group of people are conspicuously armed and acting together for the purpose of terrorizing the community, merely “displaying” the weapon could be enough:
In this day of social upheaval one can perceive only dimly the tragic consequences to the people if either night riders or day-time demonstrators, fanatically convinced of the righteousness of their cause, could legally arm themselves, mass, go abroad, and display their weapons for the purpose of imposing their will upon the people by terror. Such weapons – unconcealed and ‘ready to be used on every outbreak of ungovernable passion’ – would endanger the whole community. […] The wisdom of the common law, which made it a crime to go armed to the terror of the people, inures to our benefit today.
State v. Dawson, 272 N.C. 535 (1968).
3. Open Carry vs. Concealed Carry
Finally, an individual who is simply engaging in the “open carry” of a firearm, meaning that the person has a firearm carried visibly on his or her body, has likely not committed a criminal offense in North Carolina — unless the person is prohibited from possessing that firearm for other reasons. See Jeff Welty’s post on that topic here, and a related post on prohibited weapons of mass destruction here.
Carrying concealed weapons is generally prohibited, unless the person has a concealed weapon permit or is exempt from the law. Even a person who has a concealed weapon permit is still prohibited from carrying a firearm in certain places like courthouses, some state property (e.g., the Executive Mansion or the State Capitol Building), educational facilities, and businesses with posted signs prohibiting firearms. Several prior blog posts on concealed carry law are available here, here, and here.
B. The Narrower Issue
Setting aside any blatantly criminal conduct like assaulting a bystander or shooting into store windows, the issue presented by these armed demonstrations doesn’t quite fit into any of those boxes. Let’s assume, for the sake of argument, that the participants are not convicted felons or underage minors, and they are not brandishing their weapons, threatening or shooting at passersby, entering any prohibited locations, or carrying weapons of mass destruction. They are, however, armed with numerous openly-carried firearms as they occupy a public space or proceed together through the city streets to express their political views and call for social change. Is that a crime?
According to our statutes, yes, it is. G.S. 14-277.2 prohibits the possession of firearms and other dangerous weapons at parades or demonstrations on public property:
(a) It shall be unlawful for any person participating in, affiliated with, or present as a spectator at any parade, funeral procession, picket line, or demonstration upon […] any public place owned or under the control of the State or any of its political subdivisions to willfully or intentionally possess or have immediate access to any dangerous weapon. Violation of this subsection shall be a Class 1 misdemeanor. […]
(b) For the purposes of this section the term “dangerous weapon” shall include those weapons specified in G.S. 14-269, 14-269.2, 14-284.1, or 14-288.8 or any other object capable of inflicting serious bodily injury or death when used as a weapon.
That seems pretty straightforward: (i) it applies to any “public place” owned or controlled by either the state or any political subdivision of it (e.g., the county, city, or town) so places like streets, sidewalks, parks, and public cemeteries are all covered; (ii) it prohibits the possession of or immediate access to any “dangerous weapon” as defined by several other statutes that include firearms; and (iii) it applies to anyone participating in or even affiliated with the demonstration.
If that’s the law, why have armed protesters in Raleigh not been arrested?
C. This is Where it Gets Complicated
There may be strategic or public safety reasons why the police officers on scene would conclude it is better to avoid a confrontation with such a group, but even as a matter of law there are some difficult and unanswered questions to contend with. Some of these issues are legitimate, others less so. Let’s work through them.
1. This wasn’t a “parade” or “demonstration” — we’re just people walking around exercising our rights.
In a follow-up story posted last night, WRAL News quoted a member of the group who claimed that they were not actually engaging in a parade, protest, or demonstration: “We aren’t protesting. We are simply exercising our rights and getting fresh air, sunshine, and some much needed bodily exercise.” The report also quoted from a statement issued by the Raleigh Police Department, which noted that a person may not “possess a dangerous weapon when they are participating in or spectating at a protest,” but went on to say that “there is nothing that prohibits an individual, or a group of individuals, from walking on a city sidewalk while carrying and displaying firearms.”
So how and where do we draw the line between a group of armed people who are just out taking a walk together, as opposed to an armed parade or demonstration making a socio-political statement? Unfortunately, G.S. 14-277.2 does not define the terms parade, picket line, or demonstration, and there are no appellate cases interpreting and applying this statute.
Although it is not controlling law on the issue, I thought it might be instructive to look at how the city itself defines parades, picket lines, and demonstrations. See Raleigh City Code, Part 12, Chapter 1, Article C – “PARADES, DEMONSTRATIONS AND STREET EVENTS.” Section 12-1051 of the Code requires a permit to hold a “parade,” and that term “is defined as an assemblage of two (2) or more persons participating in […] any march, ceremony, show, exhibition or in any procession, promotion or objection of any kind in or upon the public streets, alleys, parks or other public grounds in any manner.” A parade is distinguished from a “picket” or “picket line,” which Section 12-1055 expressly deems to include “demonstrators,” and which it defines as “persons participating in vigils and any action primarily promoting or objecting to a policy upon those portions of the public ways not used primarily for vehicular parking and moving traffic and not constituting a parade.”
Assuming a comparable definition applies to G.S. 14-277.2, it would be left up to the trial court or a jury to decide whether the state has proved beyond a reasonable doubt that the group’s actions were more than a mere social gathering of people who happened to be carrying guns, and instead constituted either: (i) a show, exhibition, procession, or objection on public streets, parks or public grounds (i.e., a “parade”); or (ii) a demonstration or other action on non-vehicular public ways, primarily intended to promote or object to a policy (i.e., a “picket line” or “demonstration”). If the state can prove it was either of the latter, then the group has likely violated G.S. 14-277.2. Statements of intent and purpose posted on the group’s Facebook page, the planning and organization behind the event, and any comments or actions that occurred during the event could all potentially be relevant to making or refuting that showing.
In short, a prosecution under this statute seems possible, but meeting the state’s burden of proof in any given case may be challenging. Such a prosecution would require breaking new legal ground in a highly contentious realm.
2. This law doesn’t apply to concealed permit holders, which we all are.
G.S. 14-277.2(d) allows concealed handguns at parades or funeral processions (but still not at picket lines or demonstrations), as long as the person has a valid concealed carry permit or is in the class of those who are exempt from needing a permit, such as a law enforcement officer. Therefore, Section (d) has no bearing at all on openly carried firearms like an AR-15 slung over the shoulder.
G.S. 14-277.2(c) does apply to openly carried firearms, and says that the prohibition against carrying firearms at a demonstration does not apply to a person: (i) exempted under G.S. 14-269(b); (ii) authorized by the government to carry dangerous weapons in the performance of their duties (e.g., police officers or soldiers); or (iii) who obtains a permit to carry a dangerous weapon at the event. The second and third prongs clearly don’t apply here, since these demonstrators were not authorized and engaged in the performance of their professional duties, nor did they have a special permit authorizing them to carry weapons at a demonstration. (I did not personally contact the group to ask, but you can view the Raleigh city calendar of all permitted “Races/Walks/Parades” for May 2020 here. Due to COVID-19, there currently are none.)
As for the first prong, G.S. 14-269(b) only refers to persons who are exempt from the concealed weapons law, such as law enforcement officers, judges, clerks, prosecutors, and National Guard members. Regular members of the public who obtain a concealed handgun permit are addressed in G.S. 14-269(a2), which is not included under G.S. 14-277.2(c). Therefore, taking the exception in G.S. 14-277.2(c) as written, it does not apply to an openly armed demonstrator who happens to also have a concealed carry permit.
3. It doesn’t matter — the law is unconstitutional anyway.
This is normally the first argument raised in the debate: even if this was a parade or demonstration, G.S. 14-277.2 is unenforceable because it violates the participants’ state and federal constitutional rights to keep and bear arms. The scope of permissible restrictions or prohibitions that can be imposed on an individual’s right to possess and carry a firearm is a hotly contested area of law, to say the least. See, e.g., D.C. v. Heller, 54 U.S. 570 (2008); Britt v. North Carolina, 404 U.S. 226 (1971); Presser v. Illinois, 116 U.S. 252 (1886); State v. Kerner, 181 N.C. 574 (1921). For a deeper discussion of these issues in relation to armed demonstrations, including the overlap and intersection that this issue has with First Amendment rights, see Timothy Zick, “Arming Public Protests,” 104 Iowa L. Rev. 223 (Nov. 2018).
I won’t presume to try to resolve that debate in a blog post. Instead, what I will say is that I placed this issue last because I think it is largely settled by how we decide to answer issue #1 above. If G.S. 14-277.2 has such a broad application that it creates a blanket prohibition against a group of people socializing on the city sidewalk from openly carrying their firearms, it would likely be deemed an unconstitutional curtailment of their rights. Regardless of where the federal courts may land on Second Amendment rights, our state courts have held that the right to openly carry a firearm in public is broadly protected by the state constitution. See N.C. Const., Art. I, Sec. 30; Kerner, supra.
But if this statute is found to be a narrowly tailored regulation that serves a legitimate public safety purpose, based on the unique circumstances and risks associated with parades and demonstrations, then I think it could pass both state and federal constitutional muster for the same reasons that other comparable regulations have. See, e.g., State v. Sullivan, 202 N.C. App 553 (2010) (upholding ban on guns in courthouses).
I usually close these posts by asking readers to share their thoughts, opinions, and experiences in the comment section below. Something tells me that request will not be necessary for this topic.