Key Takeaways
- Openly carrying a gun may send a message, but courts have generally held it is not protected expressive conduct when the government regulates for public safety rather than to suppress a message.
- Many states restrict guns at protests, polling places, and legislatures, and such sensitive-place rules have tended to survive challenges, though Bruen requires the government to ground them in historical tradition.
- Courts sometimes borrow First Amendment ideas such as time, place, and manner rules in Second Amendment cases, but have refused to treat carry permits as unconstitutional prior restraints.
Is openly carrying a rifle a form of protected speech? And when armed demonstrators arrive at a protest, whose constitutional rights come first: the people carrying guns, or the people who may be too intimidated to speak?
In this TalksOnLaw Brief, Joseph Blocher, the Lanty L. Smith '67 Distinguished Professor of Law at Duke Law School and co-founder and faculty director of the Duke Center for Firearms Law, explains what happens when the First and Second Amendments overlap, and why these "rights versus rights" conflicts are among the hardest questions in gun law.
Is Carrying a Gun Speech?
Professor Blocher places the issue within a broader puzzle in constitutional law: what to do when one person's rights intersect with another's. With more guns in more public places, he says, gun rights increasingly meet speech rights, and challenged regulations usually protect other people's rights to safety, assembly, and expression. Carrying a gun openly does communicate something, such as "leave me alone, I'm armed." But being expressive in an everyday sense is not enough to trigger First Amendment coverage. Using the classic example of draft card burning, he explains that the government may punish conduct for reasons unrelated to its message. When a state regulates guns to protect public safety, most courts have concluded that carrying is not expressive conduct for First Amendment purposes.
Guns at Protests and Sensitive Places
The stakes run in both directions. Some gun owners attend protests only because they can be armed, while others stay home because guns will be present, and both effects are hard to measure. Guns protected protesters during the civil rights movement and have also been used to intimidate and kill them. Professor Blocher connects the issue to sensitive places. After New York State Rifle & Pistol Association v. Bruen (2022), states must point to historical predecessors, and he notes long traditions of laws against "going armed to the terror of the public" and protecting polling places and legislative assemblies, sites his colleague Darrell Miller has linked to constitutional conflict. He is skeptical that protests deserve double protection, citing Professor Michael Dorf's article "When Two Rights Make a Wrong."
Borrowing from the First Amendment
Citing work by Jake Charles, Professor Blocher explains that courts may borrow doctrine across constitutional areas when the contexts are relevantly similar. Courts have refused to apply the prior restraint doctrine to strike down carry permits, but time, place, and manner principles may help explain limits on guns at protests, and would also rule out sweeping measures such as a citywide handgun ban. In his view, Bruen's text, history, and tradition test may already be more protective of gun rights than free speech tests.
What to Know Now
The conflicts Professor Blocher describes continue to reach the courts. In United States v. Rahimi (2024), the Supreme Court upheld the federal ban on gun possession by people subject to domestic violence restraining orders, relying in part on the historical "going armed" laws he mentions, and clarified that modern laws need only be consistent with the principles behind historical regulation rather than a "historical twin." Lower courts have since upheld many post-Bruen sensitive-place restrictions while striking down others. In Wolford v. Lopez (2026), the Supreme Court struck down Hawaii's rule barring licensed carriers from bringing guns onto private property open to the public without the owner's express permission, while leaving owners free to exclude guns themselves. The Court has not squarely addressed guns at protests, so the interaction between the two amendments remains an open and actively debated question.
