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What Does North Carolina Law Say About Demonstrating With Guns?

For those who are interested, UNC Professor Jonathan Holbrook provides a thorough analysis at the School of Government’s Criminal Law blog. Here are some highlights:

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. …

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 … 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. …

[A]n 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. …

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…, educational facilities, and businesses with posted signs prohibiting firearms. …

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. …

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.

So why have armed protesters in Raleigh not been arrested? …

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. …

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. …

[I]t 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. …

[Another] 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. …

I won’t presume to try to resolve that debate in a blog post. Instead, what I will say is that … I think it is largely settled by how we decide to answer [the question of whether the gathering is a parade or demonstration]. 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. …

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.

There’s lots more in the blogpost, including citations to the relevent statutes and cases, so read the whole thing.

Jon Guze / Director of Legal Studies

Jon Guze is the Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over twent...

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