Is It Legal to Protest While Armed? First Amendment Analysis
The first two amendments to the U.S. Constitution protect the five freedoms of religion, speech, press, assembly and petition (the First Amendment) and the right to bear arms (the Second Amendment). But can the government limit someone’s First Amendment freedoms specifically because they’re lawfully carrying a firearm?
Americans are considering this question after U.S. Border Patrol agents shot and killed Minnesota nurse Alex Pretti during a protest in Minneapolis on Jan. 24. According to media analysis of video footage from the scene, Pretti, a 37-year-old ICU nurse and U.S. citizen, was filming agents during an immigration operation when a scuffle occurred. Multiple accounts analyzing the video footage report federal agents pinned Pretti to the ground before finding a gun on him, disarming him and then shooting him.
After the shooting, FBI Director Kash Patel stated, “You cannot bring a firearm, loaded, with multiple magazines to any sort of protest that you want. ... You don’t have a right to break the law and incite violence.”
A day later, Patel said, “We truly, fully support the Second Amendment—people's right to bear arms,” adding, “we have to ask people what's prudential, what's smart.”
Those statements, along with comments from other federal officials, met swift pushback from legal experts and gun rights groups, including the Minnesota Gun Owners Caucus, which called Patel's claim “completely incorrect.”
“There is no prohibition on a permit holder carrying a firearm, loaded, with multiple magazines at a protest or rally in Minnesota,” the group posted on X.
President Donald Trump also addressed the topic in an interview with The Wall Street Journal.
"I don’t like any shooting. I don’t like it," he said. "But I don't like it when somebody goes into a protest and he's got a very powerful, fully loaded gun with two magazines loaded up with bullets also. That doesn't play good either."
In a separate interview, the president said Pretti "shouldn't have been carrying a gun."
The National Rifle Association, meanwhile, released a statement on X, stating that it "unequivocally believes that all law-abiding citizens have a right to keep and bear arms anywhere they have a legal right to be."
In the aftermath of these events, confusion has emerged around people’s rights to protest while carrying firearms. This analysis does not examine the shooting itself but instead focuses on broader questions about the intersection of people's First and Second Amendment rights.
Gun rights laws vary widely by state and municipality. But whether someone can lawfully carry a firearm, and how they may carry it (open-carry, concealed-carry, etc.), is a Second Amendment question.
Here, we’ll provide clarity on a First Amendment question: When can the government restrict someone’s right to protest because they’re lawfully armed?
Can the government restrict someone’s First Amendment right to protest because they’re carrying a gun?
Examples of Second Amendment-related scenarios where this First Amendment question arises include:
- Officials tell a group seeking a protest permit that the gathering must be gun-free.
- Police shut down a protest because people with guns are present.
- Officers remove a person from a protest because the individual has a gun.
When someone is exercising their First Amendment rights, the government cannot restrict those rights without a good reason. The First Amendment protections that exist in public forums like a park or sidewalk do not change when protesters are lawfully carrying firearms.
Central to this analysis are what’s known as time, place and manner regulations, which allow the government to limit when, where and how protesters express their views. These regulations must be “content-neutral,” meaning they:
- Are not based on the protesters’ viewpoints or the content of their expression
- Serve a significant public interest
- Do not restrict more expression than necessary (aka are “narrowly tailored”)
- Leave protesters other options for expressing their views
Beyond time, place and manner regulations, protests may lose First Amendment protection if they become violent, interfere with legitimate law enforcement activity or move onto private property, among other restrictions.
Gun owners’ First Amendment rights: A hypothetical
Let’s apply these factors to a hypothetical scenario where a city fields complaints from residents about an upcoming gun rights rally where protesters plan to be armed. Local law allows concealed-carry, and the pro-gun rights protesters have permits to carry their firearms.
The city bars the protesters from being armed and denies the group a permit to hold its rally when it otherwise meets all the necessary requirements. If the protesters file a lawsuit alleging the city violated their First Amendment rights to speech and assembly, courts are likely to ask a few key questions:
- Does the rule prohibiting firearms at the rally apply only to this event or only to these protesters? If state law allows concealed-carry but the city prohibits carrying a gun at this particular rally or removes individual protesters who are carrying guns, that might be evidence the city is targeting this pro-gun event and, specifically, these protesters’ pro-gun views. Regulations targeting specific groups and views often violate the First Amendment, unless the government can demonstrate a good reason for restricting the activity.
- Did the city cite an important reason for restricting these protesters’ First Amendment rights? While preventing gun violence is often cited as an important public interest, it does not give the government blanket authority to silence lawfully armed speakers. Instead, safety threats must be concrete and genuine — not abstract or imagined. In this case, residents’ complaints about the protest are unlikely to demonstrate that the gathering poses a true threat of violence that would justify shuttering the rally.
A permissible, “narrowly tailored” solution might involve setting restrictions on where the protest occurs, such as staying clear of previously designated gun-free zones near schools that might exist under city law. It might also include allowing the protest to continue but removing people who brandish their weapon in a threatening manner.
This ensures maximum protection for free speech and assembly while also guarding against gun violence.
Conclusion
All Americans, including gun owners, have First Amendment rights. While gun ownership is a separate constitutional right, and gun use itself is considered conduct outside First Amendment protection, regulated instead by state and local law, gun owners do have equally strong core First Amendment rights to speech and protest.
Alex Morey is a First Amendment specialist at Freedom Forum. She can be reached at [email protected].
This information is intended solely for educational purposes. It is not intended to serve as legal advice or as a substitute for professional counsel.
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