Opposition to Guns in Polling Places

The Michigan Attorney General later announced that, earlier this year, several of the men charged had participated in protests at the state capitol that were "organized by conservative groups opposed to the Democratic governor's [coronavirus shut-down] orders and egged on by President Donald Trump," who tweeted "LIBERATE MICHIGAN" at the time. During these protests, men armed with assault weapons entered the legislative chamber, openly displaying their firearms and menacing lawmakers from a balcony overlooking the floor where legislative debate was actively underway. In response, at least one legislative session was adjourned out of fears for lawmakers' safety.

The events in Michigan, while perhaps extreme, were neither singular nor unique. (Indeed, it was later reported that, in addition to Governor Whitmer, the group had contemplated kidnapping Governor Ralph Northam of Virginia and one conspirator "threatened to hang President Donald Trump and posted a hit list on Facebook targeting other elected leaders, including former President Barack Obama.") Instead, the events that unfolded in Michigan--including armed protesters disrupting the processes of democracy and would-be "militia" activists plotting political violence--were simply among the most acute manifestations of a much broader swath of activity that poses grave threats to public safety and public health, as well as constitutional values that are critical to the effective functioning of our democracy, including the election process.

Private paramilitary activity and civilians openly carrying firearms at state capitols, polling places, election offices, and other like places pose serious threats to law enforcement, government officials, and public safety and public health in general. When violence or the threat of violence intersects with our systems of government and elections, it undermines core constitutional values and threatens our democracy. The American Bar Association therefore urges policymakers at all levels of government to adopt and enforce policies designed to prevent this conduct.

Background Facts

1. Open Carry and Protests
Historically, there were significant restrictions on carrying guns in public. Until a generation ago, carrying concealed weapons was broadly prohibited in most states, and while many states did not explicitly regulate the carrying of openly visible guns in public, strict regulations on open carry were considered unnecessary because, in practice, civilians rarely chose to carry visible guns in public spaces. That changed to some degree in the late 1960s, when the Black Panthers in California took advantage of California's lack of restrictions on open-carry to institute armed patrols in Oakland, and even staged an armed demonstration at the California capitol. In response, California's legislators passed, and then-Governor Ronald Reagan signed a bill generally prohibiting carrying loaded guns in public.

In more recent years, gun-rights activists urging more permissive laws regarding guns in public have begun staging open carry protests, in which they have displayed a range of weaponry, from handguns to military-style assault weapons, while calling on policymakers to repeal restrictions on guns in public. In Texas, for example, open carry protesters have demonstrated outside the state capitol, as well as in localities to protest their enforcement of state gun laws. Other open carry protesters have brought guns to state capitols as well, including the Michigan protesters described above, as well as similarly armed protesters who have demonstrated in capitol buildings in states from Kentucky to Idaho. Groups across the political spectrum, including white nationalists and all-Black groups, have openly carried firearms in recent months.

While to date, shootings have been avoided in state capitols, that cannot be said of all open-carry protests. When, in 2016, a mass shooting erupted in Dallas at a protest in which dozens of protesters carried assault rifles, twelve officers were shot before police could neutralize the shooter, and police originally had significant trouble distinguishing armed protesters from the shooter. As Dallas Police Chief David Brown explained, "[I]t's increasingly challenging when people have AR-15s slung over their shoulder and they're in a crowd. \u2026 We don't know who the good guy is versus the bad guy when everyone starts shooting."

The open-carry protest movement reached Richmond, Virginia on Martin Luther King Day on January 20, 2020. More than 20,000 armed protesters gathered outside the state capitol. And while bloodshed was avoided, in light of the obvious risks to public safety, police were forced to cancel a rally and lobbying day in support of gun safety measures that had been planned for the same day. The cancelled rally and lobbying day were a tradition stretching for more than two decades, begun by advocates for strengthening Virginia’s gun laws after the mass shooting at Virginia Tech. Thus, the rally of open-carry protesters forced gun safety advocates to abandon their rights to demonstrate and petition their government by holding their traditional rally and lobbying day in the state capitol. In effect, the open-carry protesters used an armed heckler’s veto to silence their political opponents.

Open-carry protests only increased in 2020 during the global coronavirus pandemic. In addition to numerous open carry protests over state shut-down orders, when nationwide protests over the police killing of George Floyd erupted and rioting and looting occurred in some cities, open carry protesters on both sides of the political spectrum created an inflammatory political environment that had not only the potential to chill political speech, but also the potential for violence. And, unfortunately, that potential for violence--and death--was realized all too frequently. In 2020, guns carried by individuals with a diverse range of political views have featured at protests on at least 70 occasions, and they have been involved in at least 21 incidents that left 22 Americans dead. At least another 14 Americans have suffered non-fatal shooting injuries in these incidents. Public health is negatively impacted not only by these fatal and non-fatal shootings, but also by the anxiety and behavior change that arises when communities feel unsafe.

Following the November 3, 2020 elections, the possibility of armed violence has arisen repeatedly in the context of attempts to intimidate election officials, including in the following incidents:

• Armed individuals went to the home of Michigan's Democratic Secretary of State and began shouting obscenities. She issued a statement in response: "Through threats of violence, intimidation, and bullying, the armed people outside my home and their political allies seek to undermine and silence the will and voices of every voter in this state."
• In Phoenix, about 100 demonstrators, some armed, protested at the building where officials were counting votes.
• In Vermont, officials received a voice message threatening them with "execution by firing squad." The Vermont Secretary of State responded: "No public servant should ever have to feel threatened or concerned for their safety while they are doing their work."
• Just prior to Election Day a call came into Philadelphia's 311 call center: "Hey, how are you? You know what happens to corrupt Democrat politicians and election officials who support Black Lives Matter and who use voter fraud and voter suppression, voter intimidation, and election tampering? You know what happens? They learn first hand, the hard way, why the Second Amendment exists. We are a thousand steps ahead of you motherf--, and you're walking right into the lion's den."
• A Georgia poll worker went into hiding after a viral video falsely claimed he had discarded ballots.
• 􀁸 Georgia's Republican Secretary of State, and his wife have received death threats, including by text message, and caravans have circled their house.
• Georgia voting implementation manager, also a Republican, received a message wishing him a happy birthday and saying it would be his last, compelling him to speak out about threats faced by election workers, including himself, and democracy at large. "I'm going to do my best to keep it together. Because it has all gone too far. All of it\u2026 Someone's going to get hurt, someone's going to get shot, someone's going to get killed. It's not right."

2. From Charlottesville to Kenosha: A Dangerous Rise in Private Paramilitary Activity

As with protests and counter-protests that feature openly displayed firearms, recent years have seen an increase in private paramilitary activity that threatens violence and the chilling of constitutionally protected activities vital to the functioning of our democracy.

The anti-government, paramilitary movement whose members style themselves as "militias" gained momentum in this country in the early 1990s in response to two controversial standoffs with government agents: Waco and Ruby Ridge. On April 19, 1995, the second anniversary of the Waco standoff, Timothy McVeigh detonated a bomb in Oklahoma City, killing 168 people and injuring more than 680 others. McVeigh had associated with a self-styled "militia" group prior to the bombing, and recent reporting documents contacts between McVeigh and the same paramilitary group whose members are now accused of plotting to kidnap Michigan Governor Gretchen Whitmer.

Though the number of private paramilitary groups calling themselves "militias" has fluctuated over time, one information-gathering organization estimated there were at least 181 active groups in 2019. Several of these groups participated in the violent Unite the Right Rally in Charlottesville, Virginia in August 2017, marching in formation and deploying with military-style firearms and tactics. In response to these tactics, then-Governor Terry McAuliffe said, "you would have thought they were an army\u2026I was just talking to the State Police [and the paramilitary groups] had better equipment than our State Police had." While the volatile environment did not result in gunfire, one protester did intentionally ram his car into a crowd of counter-protestors, killing Heather Heyer and injuring 35 others. Ever since Charlottesville, "armed groups have become fixtures at demonstrations around the country."

Recently, one of the largest private paramilitary groups in the country has publicly stated that it would refuse to recognize the election victory of the Biden-Harris ticket. The group, which the Anti-Defamation League has described as "heavily armed extremists with a conspiratorial and anti-government mindset looking for potential showdowns with the government," has said it would actively "resist" the Biden-Harris administration and that anything the new President says "will be considered not of any force or effect, anything he signs into law we won't recognize as legitimate. . . . We'll end up nullifying and resisting." Just as the acts of armed individuals seeking to disrupt democratic debate or electoral processes can be detrimental to our democracy, this threat is enhanced when large private paramilitary groups collectively take aim at eroding our electoral and governance systems.

A Threat to Our Constitutional Values and Democracy

The multiple acts of violence and lost lives detailed above demonstrate the serious dangers that arise when armed individuals—whether independently on their own or in conjunction with coordinated, private paramilitary activities—take aim at our elections or legislative activities. But even when there is no physical loss of life, these activities undermine core American values.

When openly carried firearms are mixed with political protest, as in the Richmond, Virginia rally on Martin Luther King Day in 2020, it can have a serious chilling effect on the constitutionally protected rights of other Americans. At a minimum, civilians openly carrying firearms can chill the First Amendment speech rights of counter-protesters and their right to peaceably assemble. As occurred in Richmond, when supporters of gun regulation were forced to cancel their tradition of lobbying legislators on the same day they rallied at the state capitol, the presence of armed protesters also interfered with the right to petition the government for a redress of grievances. As Timothy Zick, a law professor at the College of William & Mary who studies armed protests, observed, the pro-gun culture and the exercise of free speech and assembly are "all competing in the same space." And, given the risk and implicit threat of gun violence with open-carry demonstrations, all too frequently, "in the public square, the right to bear arms tends to trump the right to free speech."

By creating volatile environments in which violence can break out and when it can be difficult for police to distinguish armed protesters from active shooters, armed protest can also present serious challenges to law enforcement's efforts to ensure public safety and allow protected speech. As has been made clear in Dallas and elsewhere, the "potentially combustible combination" of openly carried guns and political protest "poses unprecedented difficulty for law enforcement.

When armed protestors storm government buildings, they risk not only violence to policymakers and government staffers, but also disruption to the legislative debate and lawmaking that are core to a functioning democracy. Forcing lawmakers to enlist their own armed escorts to travel safely to the statehouse, to wear bullet-proof vests while debating policy, or to adjourn previously scheduled legislative sessions does not benefit well-functioning democratic governance. And when armed protestors storm offices where votes are being tabulated, or otherwise threaten election officials counting votes, it not only gives rise to the threat of violent incidents involving election professionals, but also may risk undermining public confidence in the electoral process. These principles are embodied in ABA policies approved by the House of Delegates just last year: 19A105 (restricting guns in courthouses) and 19M106A (restricting guns in schools). Those resolutions both speak to the propriety of regulating firearms in protecting the public, particularly the most vulnerable, in availing themselves of public institutions and exercising fundamental rights.

Conclusion

For all the foregoing reasons, the ABA should adopt the proposed resolution.

Respectfully submitted,

Joshu Harris
Chair, Standing Committee on Gun Violence
February 2021