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Carrying Guns at the Polls: What Does the Second Amendment Have To Say?

By on February 10, 2021 Categories: , ,

Among the drama of this past election cycle was a flurry of debate over the question of whether Michiganders could carry their guns to the polls.

On October 16, 2020, the Michigan Secretary of State issued a directive prohibiting the open carry of firearms at or within 100 feet of polling places on election day. The overarching concern of the directive was to curb the potential for voter intimidation. In response, pro-gun-rights groups filed for an emergency injunction, seeking to invalidate the directive. As Jake Charles noted in his timely piece on this topic, although the groups’ legal claims were not premised on the Second Amendment, the complaint contained overtones of Second Amendment-absolutist rhetoric. A Michigan Court of Appeals judge invalidated the Secretary of State’s directive under Michigan’s version of the APA, and the parties voluntarily dismissed the case after the election.

But the episode poses an intriguing question about the scope of the Second Amendment. Does the Second Amendment protect open carrying of firearms to polling places?

One area of Second Amendment jurisprudence that places location-based limits on firearm carrying is “sensitive places” doctrine. Sensitive places doctrine traces its roots to District of Columbia v. Heller. The Heller opinion simultaneously established the Second Amendment right to a firearm for private purposes and placed limitations on that right. “[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 . . . .”

Since Heller, a few federal appellate courts have considered sensitive places restrictions under the Second Amendment. For the most part, these courts have not taken the history of sensitive places restrictions into account. But should they have?

There are a few reasons why inquiries into sensitive places under the Second Amendment should consider historical practice. First, Heller itself expects that such inquiries will look into historical practice. Justice Scalia stated definitively that “there will be time enough to expound upon the historical justifications for the exceptions we have mentioned.” This implies that the proper scope of inquiry for the enumerated exceptions to the Second Amendment—felons, sensitive places, and restrictions on the commercial sale of firearms—is a historical one. Moreover, the language introducing the concept of sensitive places references history multiple times. Justice Scalia stated that “[a]lthough we do not undertake an exhaustive historical analysis today,” there are certain longstanding exceptions to the Second Amendment, of which sensitive places is one. And finally, more generally, the Heller opinion overall relied upon and placed great emphasis on historical analysis. As Joseph Blocher and Darrell A.H. Miller wrote in The Positive Second Amendment, Heller has been understood to prescribe a special place for historical analysis in Second Amendment cases.

So, Heller stated that sensitive places creates an exception to the Second Amendment. And historical analysis is likely central to determining where these sensitive places are. So, what does the history of state firearms law say about guns at polling places?

In fact, there are a handful of historical state statutes that prohibit carrying firearms at or near election polling places.

A 1776 Delaware state constitutional provision declared, “no person shall come armed” to any election place, and “no muster of the militia shall be made on that day,” and nor shall any battalion or company “be suffered to remain at the time and place of holding the said elections, nor within one mile of the said places respectively, for twenty-four hours before the opening of said elections, nor within twenty-four hours after the same are closed.” The constitutional provision seems to be intended to inhibit voter intimidation. The stated purpose of the law was “[t]o prevent any violence or force being used at the said elections.”

An 1869 Tennessee statute declared that it was unlawful for “any qualified voter or other person attending any election” in the state to carry about his person, concealed or otherwise, a pistol or other deadly or dangerous weapon.

An 1870 Louisiana statute declared that it was unlawful for “any person to carry any gun, pistol, bowie knife or other dangerous weapon, concealed or unconcealed, on any day of election during the hours the polls are open, or on any day of registration or revision of registration, within a distance of one-half mile of any place of registration or revision of registration.” The stated purpose of the statute was to “Maintain the Freedom of Party Election.” The Louisiana state legislature thus viewed carrying firearms to the polls as potentially endangering that freedom of party election.

An 1873 Texas statute declared it unlawful “for any person to carry any gun, pistol, bowie knife, or other dangerous weapon, concealed or unconcealed, on any day of election, during the hours the polls are open, within a distance of one half mile of any place of election.” The structure of the statute implies the statute’s purpose was to curb voter intimidation. The Texas legislature placed the statute in the criminal code under the chapter: “Riots and Unlawful Assemblies at Elections, and Violence Used or Menaced Toward Electors.” This chapter of the penal code was located under the overall title: “Of Offenses Affecting the Right of Suffrage.”

Finally, at least two Maryland statutes—one in 1874 and the other in 1886—prohibited the carrying of guns and pistols on the days of election and primary election in certain counties.

And these are just the laws in the Duke Center for Firearm Law’s Repository. There are likely more statutes like these on the books.

The concentration of these polling place laws in Southern states in the mid-to-late nineteenth century suggests that such laws were tied to Reconstruction efforts. Moreover, the existence of these laws around the time of the Fourteenth Amendment suggests that the original public understanding of the Second Amendment (as applied to the states) included this exception for polling places on election day. State legislators presumably would not enact these laws if they thought the laws were unconstitutional under the Second Amendment.

Although the historical evidence is not conclusive, it is a critical first step for the proposition that the Second Amendment does not protect carrying guns to a polling place on election day.