Is open carry an act of political advocacy? And if so, should it be restricted at polling places on election day? I thought about those questions as I was perusing the remarks left by the TTAG commentariat earlier today. In response to my article on the recent conviction of Alabama voter Robert Kennedy Jr. for openly carrying his revolver while voting last year, TTAG reader Xanthro posted the following comment . . .

In most jurisdictions, you cannot legally campaign or wear campaign related materials with a certain distance of polling places. This is obvious a restriction on the First Amendment, freedom of speech, freedom or press, and freedom of assembly are being restricted.

Even if a person campaigning or wearing campaign related material does so in a peaceful manner, it’s a violation of the law.

Since these restrictions on the First Amendment have been upheld as Constitutional, they don’t become unconstitutional because the person is wearing a firearm. In this case, the display of a firearm is no different than the display of a campaign button and is a misdemeanor.

Weapons at polling places can easily be viewed as trying to influence the votes of others, just as campaigning at polling places can be similarly viewed.

The law on the subject isn’t quite as cut-and-dried as Xanthro implies. In 1992 the U.S. Supreme Court held that a Tennessee law forbidding the display or distribution of “campaign materials” with 100 feet of a polling place – including “[b]umper stickers on parked cars and lapel buttons on pedestrians” – was not a violation of the first amendment.

In some states, simply wearing a campaign button or t-shirt to a polling place is not illegal. In Pennsylvania, although the law has not been definitively settled, the Department of State issued an advisory opinion in 2008 stating that “simply wearing tee shirts, clothing, or buttons with a candidate’s or political party’s name, picture or emblem” at a polling place by a voter is not considered “electioneering” under Pennsylvania law, as long as “the voter takes no additional action to attempt to influence other voters in the polling place.” (The memo was subsequently challenged by election workers, but a Commonwealth Court subsequently rejected a challenge to that memo — despite the judge’s apparent distaste.)

Only ten states have explicitly imposed a “dress code” on the electorate in polling places, including gun control havens such as New York, New Jersey, and Rhode Island, but also some states like Texas, Vermont, and Montana, that have generally been protective of the right to keep and bear arms. The other forty haven’t gone as far as that.

Further, it’s an open question whether or not the courts would agree that open carry is a form of speech at all. In last year’s decision in Northrup v. City of Toledo Police Div., the US Sixth Circuit Court of Appeals rejected the idea that open carry equated to symbolic speech protected by the first amendment. In that case, Northrup had been arrested while walking his dog and openly carrying a holstered firearm (both perfectly legal in the Buckeye state; the cops were responding to a “man with a gun” call by an ignorant person and arrested him for the truly novel charge of “inducing panic”.) Northrup later sued the Toledo cops, claming a civil rights violation. The Court of Appeals allowed his case to proceed under the theory that his fourth amendment right against unreasonable search and seizure was violated, but not because open carry, by itself, was symbolic speech protected under the first amendment.

Northrup argues his rights were violated because Rose’s 911 call is undisputed evidence that
he openly conveyed his intended message that open carry was permissible…. [T]he “relevant inquiry” is whether there is a great likelihood that those who observed the plaintiffs would understand the message they attempted to convey. Here, it is clear Northrup did not convey his intended message simply by openly carrying a handgun, as he and Rose argued about whether Northrup legally could carry a handgun in that manner. The fact that Northrup – like Baker and Nixon – had to explain the message he intended to convey undermines the argument that observers would likely understand the message.

(Northrup’s situation — being out for a stroll with his dog — was not explicitly political, of course. Openly carrying in an election season where firearms-related issues factored strongly in the campaign might put a different spin on that ball before it hits the bench.)

Nevertheless, Xanthos’ overall point is taken: most, if not all, of the several States have enacted regulations on what can and cannot be done inside polling places, restricting certain types of speech and behavior. I can’t say that, in the limited context of a polling place, all of those are unreasonable. I certainly understand why we wouldn’t want, for example, some guy armed with a weapon shouting racist slogans at people as they come to vote, Or, a bunch of people hectoring voters about abortion or other hot-button issues as they step into the booth. Perhaps that’s why Courts have typically found that some additional restrictions on behavior in the limited context of a polling place are not offensive to constitutionally-protected rights.

In the final analysis, though, just because the courts have found some law to be Constitutional, that does not mean that those laws are wise policy. Sometimes we treat the Constitution as the core of a secular religion in our political debates, and view the imprimatur of constitutionality as being proof positive of good lawmaking. That just isn’t so. To bring it full circle: even if I were to agree that passive political advocacy along the lines of wearing a lapel pin ought to be banned in polling places (which I don’t,) or that open carry ought to be considered symbolic political speech (a position of which I’m skeptical,) it still doesn’t seem to me to be a good idea to restrict the otherwise legal carriage of a handgun intended for personal self defense.

Whatever its secondary political implications, the primary purpose of carrying a firearm by a law abiding citizen is to keep it handy for its owner’s personal self-defense. While we could kill a lot of time over beer spinning hypotheticals in which some people might be frightened by seeing a handgun in a polling place, we could spend an equal amount of time pointing out the very numerous times in our history when terrorists wearing white robes, aided and abetted by the local police, used violence to keep people from the polls. Given those very real facts, I see no compelling reason to ban someone from a polling place who is simply going about her business while wearing either a campaign button or a handgun.

 

DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.

62 Responses to Is Open Carry at a Polling Place Electioneering?

  1. Not electioneering, but it is “bad optics” as they say in the PR trade. You’re not going to make anyone suddenly go “f** yeah, I’m voting for the pro-gun candidate!” but you might get an anti-leaning fence sitter to vote for the other guy out of annoyance. Or create a news story that makes lots of fence sitters do the same.

      • My thought exactly. Am I the only one who thinks a polling place on election day would make a primo target for a jihadi terrorist? I’ve carried my gun while voting before, if we make it a big criminal act, I may have to forego voting. Is that the goal?

        • Don’t know where you voted before, but in Texas carrying a “firearm, illegal knife, club, or prohibited weapon” “on the premises of a polling place on the day of an election or while early voting is in progress” is a Third Degree Felony. Penal Code 46.03(a)(2)

  2. I don’t think you can create a line on this. It really depends on the context. Is a gun related matter on the ballot? Have firearms been part of the electoral debate? Would the ordinary, reasonable, person think – that you are making a statement or just carrying?

    If carrying is a political statement, it is problematic to me. If it just another day in the world of guns, then I’m fine with it. Trouble we are running into is, every election seems to bring firearms to the forefront…

  3. Are Black Panthers with night sticks political electioneering? According to Eric Holder the answer was no. So I don’t think OC is as long as you follow the law regarding distance from the polling place.

    • most of what Eric Holder says and the stuff in my septic tank have far more in common then he would like. Biggest difference is none of my crap would land me in jail and is not currently being covered with the executive privilege rug.

  4. In MA, carrying in a polling place, even concealed, is illegal. So every couple of years I commit a felony, just to keep in practice.

  5. Is open carry an act of political advocacy?

    Was it electioneering by civil rights activists when blacks gathered at polling places in their own neighborhoods? Other times blacks had gathered it we political advocacy, so does it automatically carry into the polling place or does the intent of the individuals involved matter.

  6. Last election day, I wore a tee-shirt from Molon Labe Industries, a firearm accessory concern in the Tampa area. Only comment I got was from a poll worker who told me, ‘nice shirt’.

  7. The anti-carry laws were not enacted because carrying a gun, in and of itself, was a form of advocacy, but instead to intimidate voters from “the other party” from voting at all, long prior to Jim Crow, and continued thereafter. Often times, all it took was a few armed thugs with the “correct” candidates pin on their lapel to sway the vote. Other laws included no alcohol in voting places, bar closures during the period polls were open, and other laws intended to prevent or minimize vote fraud (including vote buying), as brawls at, near, or in polling places were “disruptive” to an honest election. Another outgrowth was the secure secret ballot. These laws are generally written very simply, requiring little in the way of discretionary fact finding to establish a violation. So while this particular gentlemen offered no offense and engaged in no activities which the prohibition sought to avoid, he was still guilty of a malum prohibitum violation of a law intended to keep the peace just as laws banning guns in Congress and the courts.

    • Well, darn, that’s pretty much what I came here to say. Guess I’ll just note that the no-carry laws hang on in the Southern states mostly as a vestige of Reconstruction-era laws designed to prevent unreconstructed whites from scaring newly-enfranchised blacks away from the polls–and probably continued thereafter so Boss Hogg could retain control of the county courthouse. At least such is my understanding.

  8. Last election poll workers refused to let a man vote while wearing an NRA hat. Claimed that was electioneering because the NRA is closely associated with Conservatives and the Republican Party.

    The Douglas County board of elections supervisor said the courts have ruled that anything associated with the NRA in people’s perceptions is associated with the Republican party. Make stuff up much, lady?

    http://www.washingtontimes.com/news/2014/oct/27/georgia-man-ordered-to-remove-nra-hat-before-votin/

    • That wouldn’t have been at the polling station that was set up across from a wall mural of Barack Obama’s face above the White House, would it?

      • In October 2014, Breitbart News reported that Douglas County, Georgia’s Bundy Cobb went to the polls for early voting and was told to remove his “NRA Instructor” hat before being allowed to vote. Cobb sued over that demand, and Douglas County Election officials have now issued an apology.

        • I was actually being a bit sarcastic there–the part about the polling place with the Obama mural is true, but I didn’t really think it was the same location.

  9. Our lives are saturated with logos, icons, symbols, colors, etc. Anyone could easily argue that just about anything a person bears into a polling place is advocating for some particular political interest. Happen to have a rainbow on your shirt? You must be advocating for homosexual behavior and thus homosexual sympathetic candidates … ban rainbows within 100 feet of polling places. Happen to be eating a candy cane? You must be advocating for Christianity and thus Christianity friendly candidates … ban candy canes within 100 feet of polling places!

    Unless someone is actively harassing other voters/people, leave them alone. Who cares if they have a candidate’s photo on their shirt. Unless they are sticking their chest in people’s faces and forcing them to look at that candidate’s photo, they are good to go. The same goes for signs, stickers, colors, or anything else.

    We have to understand the objective. If you want to advocate for a candidate, holding a sign and chanting the candidate’s name at the entrance to the polling place allows you to actively and effectively communicate about the candidate that you like. You don’t need to go inside to effectively advertise your pet candidate because you can do it close to the door. In other words, you are still effective even with the ban on actively advertising your candidate inside the polling place. This does not hold true for being armed. Your objective is to be able to defend yourself if someone attacks you, whether you are inside or outside the polling place. You cannot do that inside the polling place if you are required to leave your firearm more than 100 feet away from the polling place. Hence a ban on firearms in the polling place is WRONG.

  10. I look at this the other way. Carry should be allowed to prevent electioneering. If those who would otherwise be intimidated are allowed to carry, that should allow them to feel safe enough to vote without outside influence. Again guns are not a magic device. They are an equalizer. If people stand outside intimidating people with only their stature, smaller/weaker people might cave. But gun = gun all day, every day.

  11. 138 F.3d 767 (1998)
    David PICRAY, Plaintiff-Appellant,

    Oregon election law provides that “[n]o person, within a polling place, shall wear a political badge, button, or other insignia.” O.R.S. § 260.695(4). The Secretary of State’s Office interprets this section to prohibit buttons, badges, T-shirts, hats or other paraphernalia which could reasonably be understood to support or oppose a candidate or measure on the ballot.

    On election day 1992, David Picray wore two buttons to the polls in North Albany, Benton County, that attacked a citizen’s group backing a voter initiative then on the ballot. Several signs at the polling station indicated that campaign buttons could not be displayed on the premises. Benton County election volunteer Barbara Pyburn asked Picray to remove his buttons. He refused. Pyburn contacted her superior, Benton County election director Dan Burk, who confirmed that no one was to enter the polling place while wearing a political button. Burk contacted state election director Colleen Sealock, who advised him to call local police if a voter refused to comply with election laws.

    Burk requested assistance from the Benton County Sheriff’s Office; City of Albany Police Officer Sandy Hammersley was dispatched to the scene. Hammersley directed Picray’s attention to the anti-campaigning signs. He threatened to sue, emphasizing that he “sued all the time and got a lot of money.” He then began to protest loudly and was asked to keep his voice down so as not to disturb other voters. He eventually left the polling place in order to contact the local media.

    When Picray returned, Hammersley had been joined by City of Albany Police Corporal Joe Bonitz. Picray approached the polling station. Hammersley and Bonitz told him that he would not be allowed to enter unless he removed his buttons. Picray attempted to force his way past the officers. He was arrested for criminal trespass and transported to the Benton County jail, where he was held for five hours and then released.[1] He was subsequently acquitted of the trespass charge. In a separate action, the Oregon Court of Appeals struck down the anti-campaigning statute under the free speech provision of the Oregon Constitution.

  12. There is literally nothing for me to add-if it’s OK for the new black panthers then it’s good enough for evil white open carriers. Where I live (Cook County,IL) electioneering is the norm-and there is NO open carry unless you’re a “special”law enforcement class of human…

  13. If someone is so sorry that someone’s campaign buttons, shirts or signs outside of a polling place force them to vote for someone they were not prepared to vote for, then should that person really be voting? Even if I saw an intimidating group outside, I would be voting as I see fit. The people outside can pound sand.

  14. No problems are reported, it’s about PC and paranoia, what might or could happen. Liberty, if one understands what it is and is not, would shrug-off or welcome all or nothing.

  15. Grade schools serve as the polling places here, so no open or concealed carry regardless.
    Which reminds me, I need to file an electioneering complaint. The smell of hot lunch reminds me of democrats 🙂

    • I disagree. I’ve OC’d here in NM for about seven years now. Pretty much everywhere except work, schools and postoffices.

      I understand now why most laws in our past were against concealed carry and that OC was considered the only honest and honorable way to carry a firearm. To openly carry a firearm is making a public statement as to your willingness to be a citizen soldier, a defender of your people. Your fellow citizens.

      To hide a firearm, to hide the fact the fact that you have the capability of dealing out lethal force, implied a nefarious intent.

      Times have changed, not for the better, at least in this area. I’m doing my part to change that back. My action of OC’ing, making my ability to use lethal force in defense of my community, obvious to those around me, has reminded me at a deep emotional level of the duty I have to my community. That my safety, is only as safe as I personally can make my community, with my life, if needed.

      I never would have realized this if I hadn’t OC’d these last seven years. We are blessed in this country, to have the freedom to KABA, as much as we do. We just need to keep making more states constitutional carry.

  16. In Pa, we’ve had issues with the OC crowd trying to bait LE into confrontations at polling places so they can file a civil rights lawsuit. So, here is where I’m torn. Having to deal with them on election day in a LE capacity, I have to walk a fine line. I usually start by giving them all a copy of the election laws, which are posted inside every polling place, this lays out what they can and can’t do (most of them have never heard or read title 25, the election code). The bathroom is usually what makes them go away. If they’re not registered voters in that district, don’t have a poll watcher certificate, or have already voted in that district, then they’re not allowed inside the polling location and that means they can’t enter the building to use the bathroom. That 24oz coffee ususally kicks in around 8am and they start packing up to leave. When the polling location is at a private business or church, the business owner or church leader can demand they leave the property or not park their cars on the property.

    What bothers me most is that some of these OC guys show up to support good candidates who should be in office. Not a single candidate they’ve supported, by huddling with ARs outside the polls, has won an election. In some cases their candidate has lost by fewer than 100 votes. They’re not helping those candidates at all.

    There’s just too much ass clowning attention whoring in the OC movement. These guys are less about carry a firearm for self defense then they are about people noticing that they’re carrying and paying attention to them.

    • So as a cop with your uniform, badge, gun, handcuffs and stun gun, an “ass clown attention whore” just wanting people to see that you are carrying a gun and have people pay attention to you?

      Or are you a citizen that has simply taken the next step of getting a job that pays you to try to protect the public from human predators?

      I have OC’d for over seven years here in New Mexico. Never a problem from the cops, from the business owners or the citizens.

      No swatting, no panicked calls from customers or people on the street that someone not a cop is OC’ing a gun. Cops have been extremely professional, unlike some of those “ass clowns” in other states that have harassed legal OC’ers. One cop complimented me on my choice in firearms.

      A number of people have come up and thanked me for practicing my second amendment rights.

      Over the last year, I have seen more and more citizens OC’ing a pistol. The tide is changing. More people are practicing thier most important right.

      So when people, like you, stop attributing the worst possible motives to a citizen simply practicing a G-d given right, that is when that right will be fully expressed and practiced by all free people.

      • And if it were common enough that no one even noticed, the “ass-clowns” maybe could NOT carry in order to get attention.

      • I guess you’re not getting it. I’m not anti-OC. I’m anti Jackass, and the OC crowd here with their election day antics, have hurt great libertarian leaning candidates by thinking that congregating 12 feet from the polling place door with and ARs over the shoulder is in someway accomplishing something positive. These are guys who are only out there for the sake of shock value. Just like OCTC, the oath keeps in KY, and the guys who showed up at recruiting stations.

        Better yet, voting records are public. Most, like 85% of these activists are only once every four year voters.

    • Johnny,

      I cannot comment about the people who you encounter standing around polling locations with openly visible firearms … because I have not observed them nor talked with them.

      Personally, I would consider standing around a polling location visibly armed as a form of community activism as well as civic duty. The community activism perspective: education. Your armed presence demonstrates to your community that bearing arms is legal. And your armed presence demonstrates that anyone can take personal responsibility for their own protection. The civic duty perspective: security. Your armed presence is an added measure of protection against the ambitions of a spree killer or terrorist who decided it would be a great idea to attack a polling place.

      I believe that educating and protecting your community are noble endeavors, regardless of who is providing the education and protection. Of course rabid statists disagree because they only support the ruling class (and their appointed agents) providing education and protection … and only the “education” and “protection” that they have pre-approved. So what. Should we let stern looks and harsh words from rabid statists dissuade us from exercising our rights?

      • You could also stand outside the polling place and yell nigger, kike, spic, honky, cunt, or whore at people. After all that’s a way to exercise your first amendment rights. In fact, you should be doing that as a way to protect and defend those rights.

        It’s the same thing, you’re out there for attention and shock value. better yet, do it armed and double up on the rights defending.

        • So practicing a civil right, simply standing with a rifle over the shoulder, practicing the right to KABA, is equivalent to yelling racial epithets?

          Sorry Johnny. That is seriously messed up. Your perspective, not the the right to KABA.

          If so many people hadn’t betrayed their duty, as american citizens, to be “well regulated” ie well trained and equipped citizen soldiers, we would not even be having this discussion.

          It would just be the accepted norm, like it used to be, that regular citizens would be ready, and armed with the current battle ready weapons, to be called up as the first line of defense for their country.

        • So just as this rejection of an Americans responsibility to be a “well regulated” citizen soldier happened over time, so will the reawakening of the awareness of what the duties are of an American citizen.

        • “You could also stand outside the polling place and yell nigger, kike, spic, honky, cunt, or whore at people.”

          That comparison is a load of crap and you know it.

          I’m curious as to why you think there is any kind of moral equivalence between the mere act of OC-ing a firearm and the hatred one has in their heart to yell epithets that will knowingly cause pain/discomfort/etc in others.

          You claim some sort of sadness over the loss of these libertarian candidates that have lost because of the ‘evil OC-ers’, yet I don’t think you understand the real meaning of a libertarian worldview at all.

    • Baiting?

      Johannes Paulsen’s previous article mentioned Ex parte Jason Dean Tulley . The Alabama Supreme Court struck down the law as being unconstitutional. http://www.thetruthaboutguns.com/2015/09/johannes-paulsen/one-step-forward-one-step-back-alabama-gun-cases/

      Jacksonville claimed Tulley set them up (BAITED) because he recorded the incident. Tulley noticed the the LEO’s in the credit union and hit the record on his phone. Two were on duty and one was off duty working security. The only two people you hear speak is the LEO working security and Tulley.. The video is 40 seconds long. https://www.youtube.com/watch?v=Ic5TQ9VM58Y

      Funny how someone exercising a constitutionally protected right per their state constitution is considered baiting. Especially if the incident is recorded. Now days most everyone has the ability to record if they carry a smart phone. .

      • “Funny how someone exercising a constitutionally protected right per their state constitution is considered baiting. “

        That’s an easy one: there are a great many people that don’t understand the concept of a “right.”

        Check out how often, especially in OC related stories, folks come out of the woodwork to state their opinion of how it “should” be done, or the “right” way to do it.

        It’s kind of nauseating, really. The underlying “Statist” programming that is the end-product of over a century of public school is going to be a tough nut to crack for future freedom minded generations.

  17. My opinion, FWIW… I’m certain I’ve gone to vote for an issue and someone parked their bicycle outside the building and I was swayed to vote for the pro-environment issue… (sarc off).

    Honestly, I carry everywhere, have no respect for places with signs forbidding my desire for self preservation or defense of those I love and cherish. This includes poll booths. I carry concealed and no one is the wiser.

    My point being, if you want to carry, carry concealed, especially in restricted zones- getting into an argument about your “rights” as an American (how about as a human being?) while someone about to become an active shooter stands by, listening to you defend his right to carry. (I know: this has happened once in the last gazillion years, but I think it gets my point across.)

    As to whether I think carrying sends a message to other voters? Of course it does. So does that Prius in the parking lot, or that bicycle leaned up against the wall, or that leggy blonde wearing a mink stole, or that gimpy old geezer pushing his stroller- who you happen to know is living on your dime.

    People who want to prevent someone from voting can always find an issue to stand on, it doesn’t have to be a weapon. If you want to make a statement, cover your weapon and get in the booth unhampered and vote that a**hole out of office.

  18. Do the movement a favor and do not open carry at the polling place. You will influence voting… in the complete wrong direction.

    • Data or a conclusion pulled out of your butt? I’m guessing the latter.

      Or, do you have actual data that shows people have been swayed in their votes by the mere presence of a visible firearm?

  19. I carry every day, everywhere, mostly OC. I don’t consider it a political thing, just proactive self defense.

    Oh, and I don’t vote either. It is almost always an act of aggression.

  20. So, if one candidate is a Christian, does that mean that voters can’t wear Christian-themed clothes?

    Seriously, this is one of the stupidest arguments I’ve ever heard against open carry. Political party insignia are political party insignia. Issue and candidate paraphernalia are issue and candidate paraphernalia.

    An openly carried firearm is none of the above.

  21. Electioneering? No. Unless……if there’s an element to that voting cycle that has an amendment or issue that specifically addresses firearms….then maybe it could be seen as electioneering. One thing though. Here in Florida where I vote, I have never seen an armed police officer “inside” the polling place. They’re always outside in the lobby, or out in the parking lot. I don’t think they want any visible guns in polling places, even by LEO’s. Like they don’t want anyone to suggest, imply, or claim that some subtle coercion is going on by the visible display of any firearms, by anybody.

    • With LEOs it is an entirely different reason. Some people don’t want law enforcement near a polling place because they say it will keep minorities from voting.

        • A few elections ago there were complaints in Florida because a cop car was sitting a block or so away from the polling place and it was said that minorities were afraid to drive to the polls because there might be warrants out for their arrest or they’d get arrested for DWB, etc.

    • “…if there’s an element to that voting cycle that has an amendment or issue that specifically addresses firearms…”

      Tell me, just when is there ever an election that does not have a firearms issue? On the ballot or not, every one of our rights is on the table,

  22. I recently voted in an “off-year” election for judges and school-board members. Election information was hard to find; fortunately, there were people politicking just outside the doors of the polls in 2 places. (I went to the wrong polling place at first.)

    The supporters were well-behaved and some were informative. I found it helpful. Without talking to these folks (on both sides) I would have had no other basis upon which to vote.

    The experience brought me to think about the 1A and the “reasonableness” of restrictions on speech. It seems to me that if someone is engaging in disorderly conduct inside the polling place or it’s immediate vicinity then THAT is the crime that ought to be enjoined by an enforcement action. Arguably, the closer one gets to the sanctuary of the voting booth the higher the standards for orderly conduct that ought to apply. E.g., shouting 1,000 feet from the polling place might be orderly but conversational volume within 100 feet and quiet tone inside the building might be demanded.

    For those with power of enforcement (polling officials and police), to censor content strikes me as impermissible. It is especially in matters political that the strictest – even extreme – scrutiny ought to apply in maintaining the 1A right of speech, press (printed matter) and assembly. If officials can’t sustain a charge of disorderly conduct then officials ought not be allowed to achieve a goal of censorship by violating the 1A.

    I think the most important lesson in this topic is to question: Just-how-far ought we allow officials (polling place officials, police, judges, legislators or executives) to interpret the metes and bounds of a right in the name of some competing social value?

    E.g., is speech opposing a military draft really close-enough to “shouting fire in a crowded theater” to justify a constraint? Or, (no matter how despicable,) is a generalized call for violence against a class of government officials (e.g., the police) really close-enough to threatening imminent violence against a particular individual?

    We have a centuries-old tradition of hanging-in-effigy a specifically-identifiable elected official (a president, governor, mayor, etc.) to express contempt for his actions or policies. Is it really wise to ban such demonstrations of contempt because they – arguably – incite imminent violence against a particular target? Does hanging-in-effogy really terrorize an elected official (when he has the power to surround himself with armed guards at public expense) in the same way that burning-a-cross on a hill have?

    I pose these cases because they are close-to-the-edge. Seemingly, hanging-in-effigy is an explicit and immediate incitement to violence against a specific individual, Mayor Smith. While burning-a-cross on a hill is “merely” an implicit, indefinite, intimidation against any of numerous members of a class (or perhaps several classes) of persons. Yet, our traditions call for us to tolerate the immediate and specific threat while condemning the vague and indefinite threat. Why we reason so is hard to explain; yet, there must be some wisdom here somewhere.

    We PotG hold that open-carry of guns is not disorderly or violent behavior. Certain hand motions in the direction of the openly-carried gun can be interpreted as brandishing, but not merely carrying. In light of the train-of-thought conveyed above, can we really say that there is anything different about open-carrying while entering a poling place vs. walking your dog?

    Recall the Philadelphia Black Panthers loitering outside the polls carrying clubs. Move beyond first impressions. Think about it some more. Just for a moment, imagine the same scene in the 1950s or 1960s while there was still some vestige of the KKK and red-necked Southern Sheriffs all too willing to intimidate Black demand for civil rights. Would those Black Panthers been within their rights in such a context? To make it clear that they would tolerate no intimidation of voters by racists? In the 21st century there is no realistic threat to intimidating voters of any color. Realistically, if a white voter approached such a polling place she would have no realistic fear that the police would have hesitated to protect her if a Black Panther had raised his club. These Black Panthers made themselves look foolish; however, I think it’s a stretch to suppose that a rational voter would have any more to fear from them than a citizen passing by an Oathkeeper bearing arms outside a recruiting center in the days following the recent attack.

    I think it’s unwise to try to make different judgements depending upon the era. Armed citizens – Black or white – in the civil rights era vs. in the post-civil-rights era. OFWGs parading with long-guns in TX in the 21st century was OK but Black Panthers marching to the capital in Sacramento during the civil-rights era was disorderly. That’s subjective. Muzzle discipline and trigger discipline in any context is a far more objective standard.

    We don’t know IF-or-WHEN it might again become prudent to OC to-and-from the polls. Some day, the shoe might be on the other foot. It behooves us to think very long term about the protection of fundamental rights such as speech/press/assembly/KBA. If we don’t protect them today when we – objectively – don’t need them then we won’t find them available to us when – inevitably – we will need them.

  23. It is free spreech and no regulary public place as schools and this should be an “no gun zone” and any permit process as an ccw should taxing your second adment right !
    Every taxing is discrimination and turn it to an privilleg !

  24. “Is Open Carry at a Polling Place Electioneering?”

    No. No more K Street is a co<k-Block to your access to your representatives in D.C.

    K Street residents should be relocated to VA, or at least outside the western edge of the D.C. "loop."

  25. Quoting from this article. I was mentioned in this article hence the reply.

    “Openly carrying in an election season where firearms-related issues factored strongly in the campaign might put a different spin on that ball before it hits the bench.”

    I was open carrying, wearing a BamaCarry shirt (buttoned down with collar, not t-shirt) and a constitutional amendment that amended our RKBA was on the ballot..

    The Alabama Declaration of Rights Section is found in Sections 1 through Section 36 in the Alabama Constitution.

    Our Right to Keep and Bear Arms is found in Section 26.
    Section 26
    Right to bear arms.
    That every citizen has a right to bear arms in defense of himself and the state.
    http://alisondb.legislature.state.al.us/alison/codeofalabama/constitution/1901/CA-245557.htm

    Amendment 3 on the ballot amended Section 26 .

    Amendment to Section 26.
    (a) Every citizen has a fundamental right to bear arms in defense of himself or herself and the state. Any restriction on this right shall be subject to strict scrutiny.
    (b) No citizen shall be compelled by any international treaty or international law to take an action that prohibits, limits, or otherwise interferes with his or her fundamental right to keep and bear arms in defense of himself or herself and the state, if such treaty or law, or its adoption, violates the United States Constitution.
    http://alisondb.legislature.state.al.us/alison/codeofalabama/constitution/1901/CA-2810392.htm

    Robert Kennedy, a BamaCarry board member / founding member walks into a polling location wearing a openly carried holstered handgun and wearing a button down BamaCarry shirt..What political statement is Robert Kennedy making about amendment 3? Vote yes? Vote no?

    You may be surprised by my answer. I planned on voting no..BamaCarry, Inc. never endorsed Amendment 3. We never made an official statement that we were for or against this amendment.

    A constitutional challenge has never been made to see if the legislators could pass laws criminalizing conceal carry. In State vs Reid http://www.guncite.com/court/state/1al612.html the specific legal issue presented on appeal was whether the trial judge had erred in rejecting the defendant’s requested jury charges whereby the jury would have been told that if they believed that the defendant carried the weapon concealed “for the purpose of defending his person,” and that it was necessary to carry the weapon concealed for that purpose, they should acquit. It was the defendant’s position that the statute conflicted with the provision of the Alabama Constitution granting a citizen the “right to bear arms in defense of himself and the State.”

    Personally, I believed the current constitutional provision was sufficient. This was one of the main purposes that BamaCarry was incorporated. To educate and hopefully raise sufficient funds to challenge laws that restrict a law abiding citizens ability to carry for self defense.

    The Alabama Constitution in its Declaration of Rights has a unique provision in Section 36 that should be applicable to police powers. Laws that pertain to the criminal use of a firearm do not violate the constitutional provision for someone carrying for self-defense. Section 36 clearly states; we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.
    http://alisondb.legislature.state.al.us/alison/codeofalabama/constitution/1901/CA-245567.htm

    The Alabama Supreme Court has ruled that Section 36 creates a firewall between the citizens and the general powers of government.
    Citing from Ex parte Cranman.. Section 36erects a firewall between the Declaration of Rights that precedes it and the general powers of government, including the authority to exercise judicial power, that follow it.https://scholar.google.com/scholar_case?case=8515021564353261124&q=Section+36+erects+a+firewall+between+the+citizens+and+the+general+powers+of+government.&hl=en&as_sdt=4,1

    I am quoting from an article by Jason Baker that Gina Miller included in her article on this subject. Jason knew my position when he wrote his article. To my understanding Gina did not.

    October 9, 2014
    Alabama’s Amendment 3 could jeopardize gun rights

    By Gina Miller
    “Jason Baker’s column from Wednesday, “Alabama Statewide Amendment 3 could be a slippery slope,” warns against the possible dangers to Alabamans’ right to keep and bear arms due to the wording of the proposed amendment to the state’s constitution. I want to concur with Mr. Baker’s sentiments and amplify the warning.
    http://www.renewamerica.com/columns/miller/141009

    I am quoting from another Gina Miler article.

    October 15, 2014
    Serious warning to gun rights supporters in Alabama
    By Gina Miller
    The wording in the amendment makes quite clear the back door it leaves wide open for future courts or state legislatures, under the sway of leftists, to impose restrictions on Alabamans’ gun rights – after “strict scrutiny,” of course! But, I was astonished to learn that there are apparently supporters of this amendment among conservative, TEA Party and gun rights groups, including “Alabama Gun Rights,” whose Legislative Affairs Director, George Owens, has on his publicly viewable Facebook page a message of support for this amendment, posted on September 30th By Brian Phillips.
    http://www.renewamerica.com/columns/miller/141015

    I know George Owens. George is for gun control. We call his group Anti- Alabama Gun Rights. George was against permit less vehicle carry and was against a change in the disorderly conduct statute that that prevents LE arresting people for open carry. George is ex LE. My last word is a quote by George and the link to his post on OCOD in January of 2012. Alabama has no law that you must inform.

    “Now if I stop you and you do not inform me of the weapon you have, and I end up seeing that you are armed, you will have the very unpleasant experience of me drawing my weapon aiming it at you and ordering you out of the vehicle, disarming you, conducting a search of your vehicle while I wait for the NCIC/NLETS check to come back, and the dispatcher to call your sheriff to verify your permit, while you sit on the bumper of my car in handcuffs. Plus I assure you that you will get the ticket.”
    http://forum.opencarry.org/forums/showthread.php?94239-Encounter-with-Sheriffs-Dept-on-I-10-Stop&p=1676890#post1676890

  26. The Open Carry of guns can be partially a political statement.

    Politcal Statements, banners and buttons at poling stations have been banned because it could be considered influencing other voters (as susceptible to such influence as this may be).

    However rifles at polling places have been used to influence and intimidate voter before.

    The tyrant Abraham Lincoln had poling places manned and guarded by the military as a way to intimidate voters because he considered any criticism or descent as treasonous.

    The question is if this were to happen again where the government guarded and manned poling places by the military, would the public stop it?

  27. I’d be OK with eliminating polling places from the list of statutory “gun free zones”, whether the firearm is concealed or openly carried. I don’t believe that open carry actively makes a political statement. Essence must exceed existence by some measure, after all. Something more than the mere existence of openly carrying must transpire before it qualifies as a political statement.

    Now, open carry in conjunction with activity which would itself constitute political activity, especially advocacy of a position directly related to firearms, becomes part of the overall political message and should fall under the electioneering ban.

    Bottom line, I’d be OK with a ban on loitering (whether OC’ing or not) and electioneering (whether OC’ing or not) within the immediate vicinity of a polling place. However, if you’re just there to take care of your business, i.e., voting, and leaving without interaction with others, then I’m OK with the carry of firearms at the polling station (whether OC’ing or not).

  28. Just carrying a firearm? No. It’s just carrying a firearm.

    Obviously it can be turned into a political act. ANYthing can be turned into a political act. Which is just another reason I hate politics (necessary evil that).

  29. Ban voting at polling places! It is the most succinct form of political speech available, why should it be allowed at polling places to possibly influence an election?

    Facetiousness aside, I cannot comprehend how we can ban speech of any sort at one of the most fundamental exercises of not only our freedom of speech but also our political process.

    If the fear is voter intimidation, that’s what police forces are for or you know your firearm; meet the threat of force with your threat of force.

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