The Chilling Cost of Open Carry & Assault Weapons
Most Americans were appalled, horrified, by the Trump-instigated January 6 assault on the U.S. Capitol, in which five people were killed and 140 injured. But it could have been worse, much worse. Contemplate what the toll would have been if the Trump mob had invaded the Capitol with guns.
Fortunately, in the District of Columbia all firearms must be registered and it is unlawful to possess one without a license, issued only after a 10-day waiting period and background check. Open carry, assault weapons and magazines with more than a 10-round capacity are banned outright.
But that is not the case in most jurisdictions, and for several years now vigilantes brandishing assault rifles have been menacing peaceful protestors, intimidating voters and election workers, and invading statehouses across the country.
January 6 should not have been a surprise, it had been a long time coming.
On August 18, 2009, just outside President Obama’s speech to veterans in Phoenix, a dozen or so protestors were slinging AR-15 assault rifles, and there was nothing local police or the Secret Service could do about it. Arizona is one of 45 states where it is legal to carry guns openly in public. One protestor told a reporter for the CNN affiliate, “I think that people need to get out and (open carry) more so they get kind of conditioned to it.” Have they ever.
August 11, 2017, a grab bag of self-anointed militias, white nationalists, neo-Nazis, the Klan and other far right groups, many armed to the teeth, descended on Charlottesville, Virginia, another open-carry state – a Unite the Right rally they called it – to protest the removal of a statue of Gen. Robert E. Lee, part of a Confederate monuments initiative that accelerated after white supremacist Dylan Roof murdered nine parishioners in a black church in Charleston, South Carolina. Take in the photo. On the face of it, just nuts. Lunacy. This is America?
That night, white supremacists, chanting “Blood and Soil” (in German, “Blut und Boden”) and other Nazi slogans, made a torchlight march to the University of Virginia where they confronted students with linked arms on the Lawn lined by cabins Thomas Jefferson had built for UVA’s first students 200 years ago. A melee ensued, and violent confrontations escalated the next day. Governor Terry McAuliffe declared a state of emergency, telling the New York Times that the militias “had better equipment than our officers.”
As the Virginia State Police slowly began to break up what they were now calling an “unlawful assembly,” a self-identified white supremacist, James Fields, drove his car into a crowd of counter-protestors, killing Heather Heyer, a 32-year old paralegal, and injuring 19 others. Fields was convicted of murder and malicious wounding and sentenced to life imprisonment plus 419 years.
From his bully pulpit more than 100 miles away, Donald Trump proclaimed, “There are very fine people on both sides.” Heather Heyer’s very last Facebook post: “If you’re not outraged, you’re not paying attention.”
After Charlottesville right-wing extremists took a beating in public opinion and the media, even Fox News chimed in, but by early 2020, stirred up by the pugnacious rhetoric coming out of the White House, they were back with a vengeance.
On January 20, thousands of heavily armed protesters, many in full tactical gear, marched through the streets of Richmond, the Virginia state capital, to protest a proposed ban on assault rifles and a “red flag” law that would give courts the power to temporarily seize guns from people deemed dangerous to themselves or others. They chanted, “We will not comply.” Some wore shirts reading, “Make Politicians Afraid Again.” Not just a protest, but menacing, threatening, just as they intended.
Kentucky was next. On January 31, dozens of masked and heavily armed men invaded the state capitol in Frankfort protesting proposed changes to state gun laws, including adding a “red-flag” provision, closing a private sale registration loophole, and repealing permitless open-carry. Their unvarnished message: Don’t even think about restricting our gun rights, we will shoot you if you do.
Umbrellas and protest signs on sticks are banned from the capitol because they can be “used as weapons,” but guns are not. Seriously. Security officers instructed armed protestors to go around metal detectors at the entrance, leading to this surreal photo inside the capitol rotunda.
Michigan. On April 20, 2020, hundreds of armed protestors, including the notorious Proud Boys, invaded the statehouse in Lansing to protest Governor Gretchen Whitmer’s stay-at-home order to slow down the exploding Covid-19 infection rate. Donald Trump called Whitmer “that evil woman” and tweeted, “Liberate Michigan!” A dress rehearsal, a call to insurrection presaging what he would do on January 6.
Egged on by Trump, armed right-wing protestors were back again in April, May and September, each time more and more vociferous and threatening, brandishing their weapons and screaming at legislators – some in bullet proof vests – as they tried to deliberate. The mob carried Confederate flags and signs with nooses and the slogan, “Tyrants get the rope.” More than menacing. Not so subtle death threats. Incredibly, it took until January 12, 2021 for Michigan to finally ban firearms from the capitol.
Armed and angry gangs of shutdown and gun law protestors also stormed statehouses in Oregon, Idaho, Utah, Colorado, Minnesota, Nebraska, Texas, New Hampshire, Florida and North Carolina. The leader of ReOpenNC posted a 17-minute video saying he “would be willing to kill people” for his “freedom” and that protesters would “bring force” if police tried to stop them.
Then, on October 8, 2020, the FBI announced the arrest of 13 men on conspiracy, terrorism and weapons charges, including a plot to kidnap Governor Whitmer from the Governor’s Summer Residence on Mackinac Island. Styling themselves the “Wolverine Watchmen,” they purchased rifles with silencers, high voltage tasers and night vision goggles, met for weapons training and conducted surveillance of Whitmer’s residences.
All had taken part in the armed protests in Lansing, and the FBI, monitoring group chats on social media, was onto them from the get-go, infiltrating the group with informers and undercover agents – one even went along on the surveillance rides – and collecting hundreds of audio recordings and thousands of encrypted text messages.
Adam Fox, the “brains” of the bunch, was recorded saying, “Snatch and grab, man, grab the fuckin’ Governor, just grab the bitch,” and then make their escape by boat after blowing up a bridge to impede police pursuit. Another more direct option, urged co-conspirator Daniel Harris, “Just have one person go to her house, knock on the door and when she answers, cap (shoot) her.”
Subsequent filings by the Michigan Attorney General’s Office allege that Fox had a “Plan B” for the Watchmen to storm the legislature, barricade themselves inside and conduct a series of televised “tyranny trials” during which all lawmakers and their aides would be executed. Plan C? Burn down the statehouse with everyone inside. Looney. But terrifying just the same, bringing to mind the 1792 September Massacres during the French Revolution, when “patriots” slaughtered 1,200 prisoners in five days.
A team of Cambridge University researchers has found that individuals with extremist views tend to perform poorly on complex mental tasks, and “may be more drawn to . . . ideologies that simplify the world,” according to Dr. Leor Zmigrod, lead author of Cognitive and Perceptual Correlates of Ideological Attitudes: a Data-Driven Approach [Royal Society Journal, Vol. 376, Feb. 22, 2021].
In this study, which built on earlier research, 330 participants, ages 22 to 63, all from the U.S., were challenged by a series of neuropsychological tasks, e.g., memorizing visual shapes. Zmigrod said it showed that individuals prone to dogmatism, who see the world in black and white, have difficulty processing evidence at a perceptual level, for example, “When asked to determine whether dots on a display . . . are moving left or right, they take longer to process that information and make the right decision.”
The study concluded, “Extreme pro-group attitudes, including violence endorsement against outgroups, are linked to poorer working memory, slower perceptual strategies, and tendencies towards impulsivity and sensation-seeking.” In plain English. Slow and simplistic thinkers. Volatile and impulsive. With guns.
Every autumn when I was a kid, a half dozen dads in our neighborhood went deer hunting – in many northern Wisconsin counties, deer outnumber people. Three or four days later they would come home with a buck or two tied to the front fender of the family Chevy or Pontiac.
Hunting rifles weren’t hidden, but they weren’t waved around either, they were tools for a task, not threatening in the least. And aside from the deer, no one ever got shot unless some knucklehead carelessly shot himself or, like Dick Cheney, one of his buddies.
In almost every state there were laws against carrying guns in public. Hunters and ranchers got a pass because their rifles were just used in the field and then taken back home. It would have beyond shocking for anyone to show up at a protest or political rally, much less walk into a state capitol, or a Starbucks, carrying a gun.
So most Americans were aghast when, May 2, 1967, 30 armed members of the Black Panther Party, led by Bobby Seale and Huey Newton, occupied the California capitol in Sacramento. It took less than two months for the legislature to pass and then-governor Ronald Reagan to sign the Mulford Act, a strict ban on open-carry. Reagan hit the nail on the head, “There is no reason why on the street today a citizen should be carrying loaded weapons.” Especially if they’re black, some no doubt muttered.
The following year, Congress passed the Gun Control Act of 1968, prohibiting convicted felons, drug users and the mentally ill from buying guns, raising to 21 the age to purchase handguns, and tightening dealer licensing requirements. The NRA supported it, as it had the Uniform Firearms Act of 1934, requiring a permit to carry a concealed weapon, the Federal Firearms Act of 1938, mandating federal licenses for gun manufacturers, importers and retailers, and a ban on mail-order guns sales after Lee Harvey Oswald assassinated President John F. Kennedy using a rifle purchased through an NRA magazine ad.
On March 30, 1981, after speaking at the Washington Hilton, now-President Reagan was shot in the left lung and his press secretary Jim Brady critically wounded by John Hinckley, Jr., using a handgun purchased one week earlier at a Dallas pawnshop. Twelve years later, 1993, Congress passed the Brady Bill, requiring background checks of gun buyers through the FBI’s National Instant Criminal Background Check System (NICS) – but prohibiting the creation of a national registry of gun owners – and in 1994 banned the manufacture, but not the possession, of semi-automatic assault weapons. At the state and local level, open carry was a non-issue, the focus instead on rules for who could get a concealed weapons permit.
So how did we get from then to now?
In May 1977, gun rights hard-liners took over the annual meeting of the National Rifle Association – the Revolt in Cincinnati they called it – voted out its gun safety old guard and as top exec elected Harlon Carter, a 35-year veteran of the U.S. Border Patrol and for seven years head of its Operation Wetback mass deportation initiative. Under Carter, who once served time for murdering a Mexican teenager with a shotgun, the NRA launched a militant No Gun Legislation, No Compromises agenda, pouring millions of dollars into the campaigns of state and federal legislators who would vote against all forms of gun control and punishing those who did not. Wayne LaPierre, who took Carter’s spot in 1991, declared, “You’re either with us or against us.” Sen. Bob Dole (R. Kan.) complained, “You need to pass a (NRA) litmus test every five minutes or you’re considered wavering.”
On PBS NewsHour in 1991, retired Chief Justice Warren Burger called the NRA lobbying campaign “one of the greatest pieces of fraud, I repeat fraud, on the American public by a special-interest group that I have seen in my lifetime.”
But effective in spades, the NRA became the most powerful single issue lobbying group in the country, and they got what they paid for. In the last three decades, 45 states have passed or extended laws allowing open carry of long guns, including assault rifles, and 31 the open carry of handguns.
We should not hold our collective breath waiting for state legislatures to reverse course. As of the November 2020 elections, Republicans controlled 54% of all state legislative seats. And, worth mentioning, even after the smoke had cleared, in the bright light of day, 45% of all Republicans still supported the January 6 invasion of the Capitol.
In short, what was unthinkable prior to 1990 has become normalized. With grave consequences for both public safety and democracy itself.
Start with the carnage. Since 1968, in round numbers, 1.5 million Americans have died from firearms, including homicides, suicides and accidents. According to the CDC, the U.S., with only half the population of the other 22 highest income countries combined, has 82% of the all gun deaths, and 90% of all women, 91% of children under 14, and 92% of young people between 15 and 24 killed with guns. American exceptionalism of the worst kind.
And more guns equals more dead cops. According to the American Journal of Public Health, police officers are almost three times more likely to be killed in the line of duty in states with high rates of gun ownership than states with low rates.
The U.S. Supreme Court threw gas on this fire in 2008, when by a 5 – 4 decision in District of Columbia v. Heller, it struck down a 1975 D.C. ordinance, enacted to stem a horrific homicide rate, banning handguns and requiring all firearms in the home to be stored disassembled or locked. The majority, from their lofty and safe academic perch, decided that the ordinance violated the Second Amendment, which reads in full: A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Ignoring the first 13 words as if they didn’t exist, the majority decided, out of the blue, that the last 14 words guarantee an individual right to the possession of firearms, rather than a collective right to service in a state militia or national guard.
Justices John Paul Stevens, Stephen Breyer, Ruth Bader Ginsberg and David Souter were incredulous. In his dissent, joined by the other three, Stevens chastised the majority for creating out of whole cloth a “new constitutional right to own and use firearms for private purposes,” contrary to 200 years of contrary judicial precedent, including U.S. v. Miller (1939), in which the Court ruled unanimously, 9 – 0, that the Second Amendment right to bear arms does not give private citizens the right to possess firearms, in that case, sawed-off double-barreled shotguns.
Breyer catalogued the many firearms regulations in place throughout the colonies when the Bill of Rights was adopted, so, he asked, how could the Founding Fathers have intended the Second Amendment to prevent future legislators from enacting laws to make it more difficult for Americans to kill each other with guns? See Robert J. Spitzer, Gun Law History in the United States and Second Amendment Rights, Duke Law Review, Vol. 80:55 (2017).
In a May 2019 essay in The Atlantic, Stevens said, “All (of us) could foresee the negative consequences of this decision, which should have given . . . [my colleagues] greater pause before announcing such a radical change in the law that would greatly tie the hands of state and national lawmakers endeavoring to find solutions to the gun problem in America. Their twin failure – first, the misreading of the intended meaning of the Second Amendment, and second, the failure to respect settled precedent – is the worst self-inflicted wound in the Court’s history.”
Even some who support gun regulations generally, e.g., background checks, waiting periods, etc., may say they feel safer at home with a gun for self-defense. In fact, they are not safer. Firearms in the home are 43 times more likely to kill a friend or family member than an intruder, nearly one million women have reported being shot or shot at by a male partner, and according to the American Academy of Pediatrics, the best single step parents can take to keep their children safe and healthy is to never keep a gun in the house.
On February 27, 2012, 17-year old T.J. Lane shot six students, killing three, in the Chardon High cafeteria in northeast Ohio. District Superintendent Joe Bergant said a few days later, “Chardon is every place. This can happen anywhere.” Using a handgun, it took Lane 38 seconds to fire ten bullets into his six victims. What if he had an assault rifle shooting nine rounds every second from a 100-round magazine?
Hand guns are responsible for 80% of gun homicides in the U.S., but semi-automatic assault rifles like the AR-15, essentially the civilian version of what became the U.S. military’s M-16, are designed to kill people in large numbers and quickly – that’s why they are called assault weapons – and have been used to do just that, for example, the massacres at Sandy Hook Elementary (2012: 26 killed, including 6 children), an Aurora, Colorado movie theatre (2012: 12 killed, 70 wounded), Pulse Nightclub in Orlando (2016: 9 killed, 53 wounded), Las Vegas Harvest music festival (2017: 60 killed, 411 wounded), First Baptist Church of Sutherland Springs, Texas (2017: 26 killed, 20 wounded), and Marjory Stoneman Douglas High School in Parkland, Florida (2018: 17 killed, 17 wounded). There have been more than 2,500 mass shootings – in which 4 or more people were shot at – since Sandy Hook. And 95% of public schools in the U.S. now have active shooter drills, so much for a carefree childhood.
With open carry, there is no way for anyone, including law enforcement, to tell if some guy carrying an assault rifle is just showing off, a nut case or on a mission to cause mass mayhem. Or all three. On October 31, 2015, Naomi Bettis called 911 in Colorado Springs to report a neighbor walking down her street with an assault weapon, only to be told by the dispatcher that it was not a priority because, “We’re an open carry state, so he can have a weapon and be walking around with it.” Five minutes later Bettis called 911 again, blurting out between sobs, “He just shot some guy who was riding his bike, and the guy’s lying there dead.” The gunman, Noah Harpham, a 33-year old recovering alcoholic, went on to shoot two women, both fatally, before police finally arrived and killed him in a fire fight.
On July 7, 2016, during an otherwise peaceful BLM demonstration in Dallas, Micah Johnson, an Afghanistan war veteran angry about police shootings of African Americans, ambushed and killed five police officers and wounded nine more. But because Texas is an open-carry state and some of the demonstrators were armed and black, police arriving on the scene did not know who was dangerous and who was not, diverting their focus from the real threat.
On Kentucky Derby weekend 2020, scores of heavily armed African-American men, a self-styled militia known as NFAC – the Not F***ing Around Coalition – marched through Louisville to protest the police killing of Breonna Taylor, separated only by a thin police line from hundreds of armed white counter-protestors. Just one happy trigger finger could have set off a catastrophic blood bath. And if the shooting starts, driven by hate, fear or both, how will it stop? Are we on a slippery slope to civil war? To anarchy?
In fact, starting a race war is the ultimate goal of the Hawaiian shirt-wearing “Boogaloos,” along with disbanding the ATF (Bureau of Alcohol, Tobacco & Firearms) and, before all is said and done, overthrowing the federal government. In May and June 2020, several Boogaloo Bois, as they like to call themselves, killed two California police officers and wounded three more.
Armed protestors even menaced polling places. Just outside Phoenix, Trump supporters chanting “Stop the count” and “Arrest the poll workers” forced election officials to close the Maricopa County vote counting center. One of them warned, “We want them to know we won’t let them get away with anything.” In Detroit, which went heavily pro-Biden, Trump loyalists took the opposite tack, banging on the windows of an absentee ballot center and demanding, “Stop the vote.” For Trump protestors, outcome, not process, was all they really cared about. The bipartisan Brady Campaign to Prevent Gun Violence summed it up, “Armed protestors at the polls is voter suppression, plain and simple.” ‘
Even if no gun is ever fired, open carry has a pernicious effect on free speech and the democratic process. Although Mike Shirkey, leader of the Republican-controlled Michigan senate, strongly opposed Governor Whitmer’s covid stay-home order, he called the armed protestors who stormed the state capitol last summer “jackasses using intimidation and threats of physical harm to stir up fear and feed rancor, . . . creating an environment where responsible citizens do not feel safe to express themselves.”
Shannon Watts, founder of Moms Demand Action, which lobbies for legal reform to address gun violence: “What we’re seeing is a gun extremist tactic, open carry to intimidate free speech . . . as if the Second Amendment trumps the First Amendment. A key principle of democracy is being able to gather and protest and express yourself, but when the opposition shows up with AR-15s, you’re less likely to do that, that’s fundamentally anti-American.”
Virtually all states have anti-menacing laws. For example, in Washington it is “unlawful for any person to carry [or] . . . display . . . any firearm, . . . or other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that manifests an intent to intimidate . . . or warrants alarm for the safety of other persons” (RCW 9.41.270). In Virginia, it is unlawful to “point, hold or brandish any firearm, . . . in such manner as to reasonably induce fear in the mind of another” (Code of Virginia 18.2-282). Texas law forbids citizens to carry deadly weapons “in a manner calculated to alarm” (Texas Penal Code 42.01). And so on.
All pretty clear. Can there be any question that the heavily armed men in full tactical gear who descended on Charlottesville, paraded outside polling places in Arizona, and invaded federal and state legislatures were displaying, brandishing, firearms in the manner that intimidated and alarmed ordinary citizens?
In rare circumstances they have been called out by officers who know the difference between protests and threats. When a bar owner in Odessa, Texas, backed up by men in body armor carrying AR-15s, opened in defiance of a state pandemic closure, Ector County Sheriff Mike Griffis arrested the lot of them, later telling reporters, “This was not a protest of their Second Amendment rights, it was a show of force to ensure that the bar owner could violate the governor’s order.”
But most often city officials and police departments across the country have cut armed protestors miles of slack, whether because they do not know or want to test the legal line between the right to carry and intimidation, or because they are outgunned, or because they feel a political kinship with the protestors. Especially white protestors. Blacks, on the other hand, have been shot dead in open carry states just for picking up an air rifle off the shelf in Walmart, carrying a pellet gun down the street, or telling an officer that there was a legal permitted gun in the car.
Even Justice Antonin Scalia, who wrote the majority opinion in Heller, conceded, “. . . the right secured by the Second Amendment is not unlimited . . . . not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of 19th-century courts . . . held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. . . . [N]othing in our 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.”
So where does that leave open carry? J. Harvie Wilkerson, a conservative judge appointed by Ronald Reagan to the 4th Circuit Court of Appeals: “This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights. It is not far-fetched to think the Heller Court wished to leave open the possibility that such a danger would rise exponentially as one moved the right from the home to the public square. If ever there was an occasion for restraint, this would seem to be it.” United States v. Masciandaro (2011). You would think.
But, unfortunately, not the end of it. In Young v. Hawaii (2018), a divided three-judge panel of federal 9th Circuit Court of Appeals (covering the West Coast) ruled that, after Heller, carrying a gun openly in public is a Second Amendment right, and Hawaii may not restrict open carry permits only to applicants who need a gun for their job, e.g., security guards. But in an earlier case, Peruta v. San Diego (2016), the same 9th Circuit had upheld a California law requiring applicants to show good cause for a concealed weapons permit.
In short, at least for now in California, you can open carry an AR-15, which, because it can kill so many so fast, scares the bejesus out of most rational people, but you need a permit to carry a concealed handgun with an 8-round clip that no one can see or knows you have. Sometimes, the law is, in the words of Mr. Bumble in Oliver Twist, “an ass.”
The 1st, 2nd, 3rd and 4th Circuits have upheld open carry restrictions, but the D.C. Circuit has struck them down, making this question ripe for resolution by the U.S. Supreme Court. But whether it will do so, and which way it will go if it does, is anyone’s guess.
As for assault weapons, on one end of the spectrum there is Clarence Thomas, we know what he would do. In 2015, he dissented from the Court’s refusal to hear a challenge to an Illinois city ordinance that bans possession and sale of semiautomatic weapons. His rationale? 500,000 “law abiding Americans” keep assault weapons for self-defense, so the 2nd Amendment guarantees their right to carry them in public, even if some use them to commit mass murder. And if those same gun owners had RPGs (rocket propelled grenades) in their basements, same analysis, Justice Thomas?
In 2017 Thomas dissented when the Court refused to review a 9th Circuit ruling that “there is no Second Amendment right for members of the general public to carry concealed firearms in public.” And in 2018 he dissented from the Court’s refusal to review a 9th Circuit ruling that California’s 10-day waiting period and background check for the purchase of firearms is a “reasonable precaution for the purchase of a second or third weapon, not just for the first.”
Thomas has been joined on the Court by Neil Gorsuch and Brett Kavanaugh, appointed by Trump after relentless NRA lobbying, who along with Samuel Alito are on record saying that the Court should take up another 2nd Amendment case to spell out a standard of strict scrutiny for firearms regulations.
But in June 2020, the Court, with Gorsuch and Kavanaugh on board, declined to hear appeals of 10 cases upholding firearms regulations, including state laws and local ordinances banning the sale or possession of assault rifles and large-capacity ammunition magazines and restricting open carry outside the home. Perhaps Chief Justice John Roberts for one, Amy Coney Barrett for another, from the Court’s right wing, are beginning to heed the words of Robert Jackson (Associate Justice 1941 – 1956), who once wrote in a different context, “There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”