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.