New ABA Resolution: Opposition to Guns in Polling Places

In late February 2021, the American Bar Association adopted Resolution 21M111, “Opposition to Guns In Polling Places,” which is short enough to insert as a single block quote:

RESOLVED, That the American Bar Association urges federal, state, local, territorial, and tribal governments to enact statutes, rules and regulations to prohibit the possession and display of firearms by persons other than governmentally authorized military, law enforcement or security personnel in and around buildings and at meetings where legislative debate is conducted, or where ballots are cast, received, processed, or counted, in order to prevent violence, avoid impacts on public health and safety, and ensure that armed intimidation does not disrupt or discourage open, robust debate on public issues or interfere with the electoral processes critical to the functioning of our democracy.

[Note: this blog has covered litigation over gun restrictions at polling places here, here, and, more recently, here. And Luke Morgan published a great article in 2018 on guns at protests]. This new ABA Resolution was co-sponsored by the ABA Standing Committee on Gun Violence, the Commission on Hispanic Legal Rights and Responsibilities, the Commission on Sexual Orientation and Gender Identity, the Standing Committee on Election Law, the Section of Civil Rights and Social Justice, and the Criminal Justice Section.  Since 1965, the ABA has adopted 28 formal resolutions about firearm policy – some urging the adoption of certain policies or amendments to existing legislation, and some model acts, similar to those published by the Uniform Law Commission (also known as the National Conference of Commissioners on Uniform State Laws), that can serve as off-the-shelf bills for legislators to introduce. I highly recommend the ABA resolutions on firearm policy to scholars researching in this area, because the supporting reports are excellent – a treasure trove of useful historical background, surveys of existing state or federal statutes or court precedent, and careful legal analysis.  For legislators, the model acts in this collection are an under-appreciated resource for off-the-shelf legislation – carefully drafted, restrained in their reach, and clear in their terminology.

The five-page report that accompanies the new resolution (Guns in Polling Places) begins with an account of the arrests of a dozen or more men in October 2020 who had planned to kidnap Governor Whitmer of Michigan – and how a few these same individuals had participated in the armed protest-occupation of the Michigan State Capitol a few months before to protest COVID closure orders. It then proceeds with a background section that chronicles armed protests in legislative buildings, at polling places, and at public marches and demonstrations in the last five or six years, including armed protests following the November 2020 election.  Missing is any mention of the Capitol riot in Washington, D.C. on January 6, 2021, though it would have been an obvious example to include – the writing of the Report may have predated that incident.  The background section also includes an insightful discussion of armed militia and paramilitary groups and their public activities.  A particularly interesting point that runs through this report is that public displays of firearms are being used not merely for self-expression or safety, but to intimidate legislators, voters, and peaceful protesters exercising their First Amendment rights.

One disturbing example from the ABA report is from Virginia, where in 2020 authorities cancelled previously approved peaceful protests advocating for more gun regulations because pro-gun advocates announced they would counter-protest with weapons:

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.

The collision of Second Amendment and First Amendment rights is a point discussed in a terrific recent article by Gregory Magarian; Tim Zick has a good recent piece on armed protests here, and Mike Dorf has a piece in progress here.   One of the current unresolved issues with gun rights is armed protests, which highlight the blurry line between intimidation of political opponents (implied threats, but not rising to the level of a criminal threat) and legitimate political expression or self-protection while protesting for a controversial position.