This is the second of two posts in a micro-series on public carry at protests. Each post is by an FRC Fellow.
It frequently takes a tragic incident to shine a spotlight on an important, neglected issue. That is the case with the shooting death of anti-ICE protester Alex Pretti in Minneapolis on January 24th. Alex Pretti was killed in an altercation with federal law enforcement agents, while armed with a handgun and two extra magazines. This has brought the issue of whether it is legal to take a firearm to a public protest to general notice. On the legality of taking a gun to a public protest, the National Rifle Association (NRA) as well as anti-gun and anti-ICE protestors are, in this case, on the same page. But as it turns out the law on the issue is more complicated than we thought.
Skipping to the chase, the question is whether it was illegal for Pretti to be armed when protesting? In the immediate aftermath of the shooting, FBI Director Kash Patel stated that “you cannot bring a firearm loaded with multiple magazines to any sort of protest that you want.” Notice the caveat many readers may have ignored, “any sort of protest.” Treasury Secretary Scott Bessent agreed with Patel that Pretti had bought the weapon to what was supposed to be a “peaceful protest.” On the other hand, the NRA correctly points out that as the Supreme Court has affirmed, law-abiding citizens have a right to keep and bear arms anywhere they have a legal right to be. California’s Governor Gavin Newsom, whose state has some of the strictest gun laws in the country, seemed eager to point out inconsistencies with the Trump administration’s previous stances on the Second Amendment. Unsurprisingly, there have been a lot of immediate responses, many of which gloss over the circumstances for popular consumption.
The right to carry a weapon at a public protest depends on the state where it takes place, the sort of protest, and implicates the wisdom and prudence of the gun owner. Eleven states and the District of Columbia have a ban on concealed weapons or openly carried firearms at demonstrations and protests. Seven states and Washington D.C. ban both open and concealed carry. North Carolina, for example, makes it illegal to carry any weapon, not just a firearm, to a protest. The stated aim is to prevent people using their weapons to intimidate, or terrorize others in public spaces. Minnesota, where Petti was carrying a handgun and extra magazines in his encounter with federal agents, permits protestors to carry a firearm to a protest.
Many organizations, at least those wanting a peaceful march and protest, have the foresight to issue warnings to participants about what to carry. Marchers in this January’s large, annual Right to Life march were advised not to bring a list of items, including firearms, ammunition, toy guns, weapons of any kind, or any other items determined to be potential safety hazards. The ACLU’s list to participants at protests it helps sponsor, says nothing about firearms, but in the No King’s Protest advised marchers not to “bring anything you wouldn’t want on you if you were arrested.” Perhaps Gregory Bovino, commander-at-large of the Border Patrol, put it best when he explained that his agency respects Americans’ Second Amendment rights, but “those rights don’t count when you riot or assault, delay, obstruct, and impede law enforcement officers, and, most especially, when you mean to do that beforehand.” There is a right to carry and a caution to respect the safety of participants and all others, to avoid injury or death.
There are two important points worth noting in the Petti case. First, a man labeled by supporters as merely a care-giving nurse, minding his own business, was tackled to the ground by several federal officers and purposely shot. While the film footage of the incident is confused and confusing, there is a video of Petti taken on January 13th, eleven days before his death. In this video Petti is not at a protest but tracking down and going after ICE agents in a car. He is shouting, spitting at them, and he chased their SUV, kicked its tail light, completely destroying it. The officers came out of their car, seized Petti, and then let him go. His damage of their SUV is a misdemeanor if under $1000, and a felony under 18 U.S.C. § 924(c) if over $1000, especially if armed at the time.
Secondly, in this incident and in the altercation on January 24th that caused his death, Pretti was not at a protest. He was acting alone, although part of a group organized to obstruct ICE and federal agents attempting to enforce federal law. Perhaps Bovino was right when he advised that whatever rights Petti had to carry a firearm, “those rights don’t count when you riot or assault, delay, obstruct, and impede law enforcement officers, and, most especially, when you mean to do that beforehand.”
It is unfortunate that cautions need to be learned through tragedies and misunderstanding. On the other hand, the investigation is ongoing. Whatever the conclusion, we can pray that the right lessons and prudent caution will be learned. A peaceful protest, that is actually peqaceful, is far more effective and permits us all to understand the issues and maintain public order, without the risk of shredding our polity.