Time, place, and manner restrictions on public assembly seek to control what type of behavior?

This chapter explores the general frameworks and specific features of First and Second Amendment doctrine that are most relevant to the context of public demonstrations. Those Amendments—like many constitutional provisions—regulate only governmental actors, not private individuals. Thus, when protests occur on private property, the property owners are free to restrict unwanted speech, ban weapons, require event organizers to pay the full costs of providing security, and otherwise limit potentially harmful conduct.1 In addition, the First Amendment discussion below focuses exclusively on so-called public forums2—where most expressive gatherings occur—rather than on nonpublic forums, where speech rights are highly constrained.3

Overview This chapter discusses First and Second Amendment principles as applied to limitations on speech and assembly, including restrictions on gun possession and paramilitary activity, in the interest of public safety:

• Violence and incitement to imminent unlawful or violent activity are not protected by the First Amendment.
• Public safety is a legitimate and compelling governmental interest that can justify carefully crafted limitations on First Amendment-protected speech and assembly in certain circumstances.
• Limitations based on the content of speech are disfavored and will be upheld in court only when the government’s interest is very compelling and no other means are adequate to protect that interest.
• Restrictions based on the anticipated hostile reaction of some members of the audience are considered to be content-based, making them much more difficult to defend. It is generally impermissible, for example, to deny a permit based on fears about how counter-protesters will react.
• Content-neutral limitations on speech, known as “time, place, and manner” restrictions, will be upheld in court when they are narrowly tailored to advance a significant government interest. Unlike content-based restrictions, they do not need to be the only means adequate to protect the government's interest.
• Time, place, and manner restrictions, such as banning weapons and paramilitary activity by all participants in a public event, may be justified for public-safety reasons.
• Giving unfettered discretion to local officials, whether as part of an advance permitting process or during the event itself, is unlikely to withstand First Amendment scrutiny.
• The Second Amendment protects an individual right to possess guns for purposes of self-defense, but it is not a right to carry any weapon in any manner and for whatever purpose.
• The Second Amendment allows jurisdictions to impose reasonable limitations on gun ownership and possession, especially when those limitations seek to protect public safety outside the home. For example, courts have upheld laws that limit individuals’ ability to carry guns in public and on government property.
• Reasonable restrictions on carrying firearms during public events likely would be found by a court to be consistent with the Second Amendment.
• The U.S. Supreme Court repeatedly has held that states may prohibit private paramilitary organizations consistent with the Second Amendment.
• Even if a regulation is consistent with the Second Amendment, it may nonetheless be preempted by state constitutional provisions or state law that prevents local jurisdictions from regulating firearms. Local jurisdictions seeking to impose limitations on gun possession at public events should consult state law before doing so.

In 1977, the neo-Nazi National Socialist Party of America announced its intention to march in Skokie, Illinois, a community with the largest population of Holocaust survivors in the country. They intended to wear uniforms embellished with the Nazi swastika and carry a banner bearing the swastika and statements such as “Free Speech for the White Man.” As abhorrent as their message was to the majority of the population, years of court battles had made it clear that the First Amendment protects the right to engage in hateful, racist, offensive speech and to associate with others who share those views.4 But the First Amendment does not protect violent or unlawful conduct, even if the person engaging in it intends to express an idea.5 Nor does the First Amendment protect speech that incites imminent violence.6

Governments May Impose Time, Place, and Manner Restrictions on Speech and Assembly in Public Forums

Although the First Amendment limits the government’s ability to regulate speech in public forums, it does not guarantee a right to express oneself “at all times and places or in any manner that may be desired.”7 Long-established First Amendment principles permit the government to act in ways that burden expressive freedoms if it can demonstrate an adequate justification for doing so. Public safety is a legitimate and compelling governmental interest that can justify certain restrictions on speech and assembly.

Speech restrictions in public forums are generally adjudicated under one of two overarching First Amendment frameworks. First, restrictions that single out speech on the basis of its content are subject to strict scrutiny, meaning that they “must be the least restrictive means of achieving a compelling state interest.” 8 Second, if a restriction is content-neutral—such that it regulates only the time, place, or manner in which speech can occur, but not the substance of the speech itself—then it need only (1) be “narrowly tailored to serve a significant governmental interest” and (2) “leave open ample alternative channels for communication of the information.”9

This Section provides an overview of three key issues local governments must grapple with when considering whether to impose restrictions on public demonstrations, rallies, protests, and marches: (1) how to determine whether a speech restriction is content-based or content-neutral, (2) how that determination affects courts’ tailoring analyses, and (3) which alternative methods of communication qualify as “ample.”

Which Speech Restrictions Are Content-Based?

According to the Supreme Court, a content-based restriction is one that “target[s] speech based on its communicative content”—in other words, “because of the topic discussed or the idea or message expressed.”10 In the context of public demonstrations, this distinction arises most often in the following three settings.

When textual provisions “on [their] face” distinguish between types of communicative content, those regulations are content-based.11 As a result, permitting requirements, ordinances, or other written requirements that apply only to12 (or carve out exemptions for13) certain groups, topics, or functions are almost certain to be classified as content-based. This is not to say that such restrictions would never survive strict scrutiny—only that they are subject to strict scrutiny. In contrast, multiple courts have held that generally distinguishing between expressive and nonexpressive activity does not qualify as content-based, inasmuch as all speech is treated the same.14

Even without a textual provision that singles out particular actors or messages for favorable or unfavorable treatment based on their content, speech restrictions will be deemed content-based if they account for—or were prompted by—the prospect of an adverse audience response. As the Supreme Court has made clear, “[l]isteners’ reaction to speech is not a content-neutral basis for regulation.”15

This principle is a crucial First Amendment limitation in the context of public demonstrations. Courts have found speech restrictions to be content-based when the possibility (or actuality) of a hostile audience caused governmental officials to deny permit requests16, cancel scheduled events17, change the location of proposed events18, search all attendees19, employ crowd-control measures,20 and silence individual speakers engaged in expression21. In addition, facially neutral permitting regulations will be deemed content-based when they invite officials to consider how others might react to a particular speaker’s message. This is true, for example, of permitting fees designed to offset the costs of police protection22. (The constitutionality of such fees will be further explored in Section III.A.3.)

Although the case law provides no clear guidance, courts arguably should treat as content-neutral any policing measures implemented in light of anticipated violence between ideologically opposed camps. If antagonistic groups expect and intend to clash with one another—regardless of what messages will be expressed on the day of an event—then any preventative speech restrictions would not stem from “[l]isteners’ reaction to speech.”23 They would instead be justified by the existence of ongoing and foreseeable hostility between warring factions—and thus the dangerous possibility of violence arising from the gathering as a whole. The U.S. Court of Appeals for the Seventh Circuit has seemingly endorsed this position, regarding as content-neutral a speech restriction issued against the backdrop of “groups … who have been violent toward the [demonstrators] in the past, and who have been violent toward one another.”24 The court viewed the challenged restriction as targeting “the possibility that attendees who had been violent at previous rallies would injure themselves, others, or property”—“not … the content of the views aired at the rally.”25

Finally, the Supreme Court categorizes speech restrictions as content-based if they “cannot be justified without reference to the content of the regulated speech” or if they were adopted “because of disagreement with the message [the speech] conveys.”26 Reasoning in this fashion, courts have deemed individualized restrictions—such as permit denials to particular applicants—to be content-based when comparably situated groups have received preferable treatment in the past.27 Such disparities create an inference that officials have simply muzzled speech with which they disagreed, rather than acted to advance some valid governmental objective.

Tailoring

Regardless of whether a speech restriction is content-based or content-neutral, the government must have sufficiently good reasons for regulating expression, and it must do so in a way that does not unnecessarily restrict speech. Content-based regulations must be “the least restrictive means of achieving a compelling state interest,”28 and content-neutral time, place, and manner regulations are held to a more lenient standard—that they be “narrowly tailored to serve a significant government interest.”29 As the case law amply demonstrates, First Amendment tailoring analysis resists bright-line rules. Even judicial precedents presenting seemingly identical legal questions are not treated as dispositive; they are merely instructive, and can be overcome by any number of distinguishing factors relevant to the tailoring inquiry.30

The types of interests that justify the creation of permitting systems for public events qualify as “substantial” under First Amendment doctrine. These include the government’s interests in maintaining public property in a clean and usable condition,31 coordinating multiple uses of limited space,32 and ensuring that streets and sidewalks remain safe and accessible.33 Courts also agree that governments have a substantial interest in regulating the harmful effects of public assemblies—including threats to human safety,34 public health,35 and nearby property,36 as well as instances of excess noise.37

It is less clear which interests qualify as “compelling.” There is a dearth of case law on this question; because the vast majority of permitting regulations (and the restrictions they engender) are content-neutral, it is usually enough to establish that a proffered interest is substantial.38 That said, courts have explicitly39 and implicitly40 recognized that governments have a compelling interest in ensuring public safety and order at public events.

In the context of public demonstrations, courts virtually never question the validity of asserted governmental interests in the abstract. Problems do arise, however, when governments cannot demonstrate that their asserted interests are seriously implicated under the particular factual circumstances at issue.41 In these situations, it will be difficult to establish that speech has not been excessively restricted in relation to valid governmental goals.

Conversely, an unusually strong showing of governmental need may yield a correspondingly lenient tailoring analysis.42 For instance, a demonstrated history of past violence—or reliable evidence of anticipated violence—will weigh heavily in favor of the constitutionality of speech restrictions designed to ensure public safety.43

Although a content-neutral regulation must be “narrowly tailored to serve a significant governmental interest,” it “need not be the least restrictive or least intrusive means of doing so.”44 A regulation will be invalidated for this reason only if its strictures are “substantially broader than necessary to achieve the government’s interest.”45 In other words, the government “may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”46 This test is hardly a rubber-stamp; as discussed throughout this Toolkit, courts routinely invalidate regulations that sweep unnecessarily broadly in relation to the government’s goals. Content-neutral speech restrictions are likely to be struck down if the government has overlooked “obvious” alternatives that would have achieved the same ends “with less restriction of speech.”47

Content-based speech restrictions are “presumptively unconstitutional.”48 To survive so-called strict scrutiny, such restrictions must serve a “compelling governmental interest” and be “narrowly tailored to that end.”49 Critically, the phrase “narrowly tailored” bears a more stringent meaning in the context of content-based regulations—it requires that those regulations be “the least restrictive means” of achieving a compelling state interest.50

Although content-based restrictions are generally subjected to strict scrutiny, the Supreme Court has stated categorically that “[s]peech cannot be … punished or banned … simply because it might offend a hostile mob.”51 This so-called “heckler’s veto” principle accounts for three contexts in which content-based restrictions are treated as per se invalid, rather than subject to strict scrutiny. First, governments may not financially burden expression in ways that are influenced by how other persons might react, or have reacted, to that speech.52 Second, with two narrow exceptions,53 speakers may not be criminally punished merely because their speech foments violent reactions.54 And third, governments have no authority to deny or revoke requested permits55 or “enjoin otherwise legal expression”56 simply because speech might elicit a hostile response.

Ample Alternative Channels

Time, place, and manner regulations must “leave open ample alternative channels for communication of the information.”57 Although the Supreme Court has never precisely defined this requirement, its essence is that speakers must be able to reach approximately the same audience without undue cost or effort.58 Regulations that “foreclose an entire medium of expression” are viewed with particular disfavor.59 Alternative channels are not “ample,” moreover, if a speaker “is not permitted to reach the intended audience.”60 This can occur when “the location of the expressive activity is part of the expressive message.”61

On the other hand, alternative channels will be considered adequate if a restriction merely renders the speech somewhat less effective62 or somewhat more costly;63 a speaker is not entitled to insist on her “first or best choice.”64 It is also the speaker’s burden to demonstrate that a challenged restriction threatens her “ability to communicate effectively.”65

The First Amendment Forbids Giving Government Officials Unfettered Discretion to Regulate Expression

The First Amendment prohibits government officials from regulating expression absent “objective factors” and “articulated standards” to guide their decisions.66 Put another way, administrators may not exercise “unfettered discretion”67 to permit or restrict speech. This rule aims to ensure that governments will not covertly amplify their preferred viewpoints, while silencing opinions that meet with official disapproval. With unduly broad discretion comes a heightened risk that the authorized decisionmaker will favor or disfavor speech based on its content. It is not enough to rely on government officials’ good faith in administering such elastic language. If a provision allows for the unfettered regulation of First Amendment rights, then it is subject to facial invalidation unless the government can identify a “binding judicial or administrative construction” or “well-established practice”68 confining officials’ discretion.

This prohibition on unfettered discretion applies in a variety of contexts implicated by the First Amendment. The existing case law thus counsels strongly in favor of establishing a permitting system under which public expression may be regulated only according to objective, standardized processes.

Adjudicating Permit Applications

The rule against excessive discretion applies most quintessentially to governments’ treatment of permit applications. In Shuttlesworth v. City of Birmingham (1969), for example, the Supreme Court invalidated an ordinance requiring that permits for public demonstrations be granted “unless in [the city commission’s] judgment the public welfare, peace, safety, health, decency, good order, or convenience require that it be refused.”69 Such language enabled local officials “to roam essentially at will,” authorizing or forbidding speech according to their personal conceptions of “decency,” “morality,” and “public welfare.”70 Courts routinely strike down similar language when it fails to constrain official decisions to (1) grant or deny permits,71 (2) impose certain conditions on permits,72 and (3) revoke or modify previously granted permits.73

At the same time, there is wide agreement that governments must be afforded some latitude in adjudicating permit applications. Challenged provisions are usually upheld as long as the administrator’s discretion can be fairly characterized as less than absolute.74 This is especially true when the relevant factors implicate the decisionmaker’s professional expertise (e.g., matters of public safety and available municipal resources)75 or appear to have been phrased as precisely as possible under the circumstances.76 And courts generally have held that qualifiers like “unreasonably,” “substantially,” and “unnecessarily” operate to reduce official discretion rather than to expand it.77 Despite some notable exceptions,78 facial invalidation is disfavored as long as some objective touchstones exist. It is a common refrain in this area that “a pattern of unlawful favoritism” can be dealt with “if and when [it] appears.”79

Waivers from Generally Applicable Permitting Requirements

Because they “raise[] the spectre of selective enforcement on the basis of the content of speech,”80 waiver provisions are especially likely to be facially invalidated as conferring unbridled discretion. Accordingly, courts have invalidated a host of waiver provisions authorizing administrators to dispense with standard permitting requirements, both of a procedural81 and substantive nature.82 Isolated departures from general protocols—which function as ad hoc waivers—are nearly certain to be struck down, as well.83

There appears to be only one decision upholding a waiver provision in a permitting regulation: the Supreme Court’s decision in Thomas v. Chicago Park District (2002). Thomas unanimously upheld a permitting regulation specifying that the administrator “may” (rather than “must”) deny permit applications for any one or more of several listed reasons.84 The Court thus refused to “insist[] upon a rigid, no-waiver application of the ordinance requirements.”85 But Thomas also declined to authorize fully discretionary waivers of permitting requirements. Instead, the Court noted that Chicago’s Park District had interpreted the challenged provision as allowing it to “overlook[] only those inadequacies that, under the circumstances, do no harm to the policies furthered by the application requirements.”86 This gloss functioned as a “binding … administrative construction”87 forbidding the use of waivers except as to trivial harms. So narrowed, the provision posed little risk of favoring or disfavoring speech based on its content. The Court concluded by assuring that any abuses could be dealt with through future as-applied challenges.88

Financial Obligations Imposed on Permittees

Permitting regulations often require applicants to assume certain financial obligations as a condition of obtaining a permit. Examples include fees tied to the estimated costs of furnishing necessary governmental services, insurance and surety-bond requirements, and indemnification and holdharmless agreements. As explained below,89 it is unconstitutional to consider the content of an applicant’s speech in imposing these requirements. In addition to that frequently litigated constraint, the First Amendment forbids administrators from exercising unfettered discretion in deciding (1) whether to impose financial obligations as a condition of receiving a permit, and (2) if so, in what amounts.

Unsurprisingly, the case law on excessive discretion in this context largely mirrors the general principles discussed above. The most pertinent Supreme Court decision is Forsyth County v. Nationalist Movement , in which the Court struck down an ordinance that left the decisions of “how much to charge”—“or even whether to charge at all”—to the “whim of the administrator.”90 A variety of financial requirements have likewise been invalidated on the ground that they stemmed from an exercise of untrammeled discretion.91 Others, however, have been upheld as the product of sufficiently cabined judgments grounded in one or more articulable state interests.92 Lastly, as with waivers of permitting requirements more generally, waivers of financial obligations may be granted only pursuant to provisions that meaningfully curtail official discretion.93

Searches of Attendees

Because the prohibition on unfettered discretion applies to “a wide[] range of burdens on expression,”94 the U.S. Court of Appeals for the Eleventh Circuit has held that decisions to search some or all persons who attend a public demonstration cannot be the product of officials’ unguided judgment. In that court’s view, such mass searches—even if otherwise justified by a risk of impending violence—may be undertaken only pursuant to “objective, established standards” that predated the decision to implement safety protocols for a particular gathering.95 Jurisdictions thus would be well advised to include in their permitting regulations generally applicable standards for conducting searches at public demonstrations. (The constitutionality of such searches is discussed further below in Section III.B.1.)

Case law from the Supreme Court and lower courts suggests that reasonable restrictions on gun possession during public events are consistent with the Second Amendment to the U.S. Constitution. Although the Supreme Court has recognized an individual right to keep and bear arms under the Second Amendment, that right is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”96 Rather, the Court has made clear that governments may constitutionally impose reasonable regulations on gun ownership and possession, especially when those regulations are aimed at protecting public safety outside the home.

In particular, as discussed in greater detail below, the Supreme Court considers certain gun safety regulations to be presumptively lawful. Such regulations include, among other things, prohibitions on the possession of firearms in “sensitive places” such as schools and government property and laws prohibiting private paramilitary organizations.97 In addition, gun-safety regulations not deemed presumptively lawful are nonetheless permissible when those regulations advance a sufficient governmental interest and do not impose too great a burden on the Second Amendment right. As relevant here, applying these principles, lower courts have upheld many gun-safety regulations, including restrictions on individuals’ ability to carry firearms in public, and prohibitions on carrying firearms on government property. These precedents all suggest that reasonable, temporary restrictions on the carrying of weapons during public events would be constitutional.

This Section addresses only the extent to which the Second Amendment permits reasonable gunsafety regulations and how federal courts, as a general matter, have approached these issues. Note that the analysis of any given issue may vary slightly depending on the circuit; therefore, local governments should review the case law from their jurisdiction for the judicial precedent relevant to their issue. Moreover, state constitutions may include provisions protecting the right to bear arms that are different from and, in some cases, broader than the Second Amendment.98 And, as discussed in Section II.F below, even if a local regulation is permitted under the Second Amendment, it may be preempted under state law. Accordingly, local governments should also consult their state constitutions and codes to ensure that any firearms restrictions they plan to impose are not prohibited by state law.

The Supreme Court Has Recognized an Individual Right to Keep and Bear Arms for Self-Defense in the Home

In 2008, the Supreme Court in District of Columbia v. Heller recognized for the first time an individual right under the Second Amendment to keep and bear arms for the purpose of self defense.99 Despite longstanding precedent suggesting that the Second Amendment protected the right to keep and bear arms only for certain authorized military purposes,100 the Court struck down the District of Columbia’s ban on handgun possession in the home, which it said impermissibly infringed on individuals’ ability to use handguns “for the core lawful purpose of self-defense.”101 The Court later held in McDonald v. City of Chicago that “the Second Amendment right is fully applicable to the States,” explaining that states, like the federal government, may not impermissibly burden the right to keep and bear arms.102 In doing so, the Court reaffirmed its “central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.”103`

The Supreme Court Has Left the Door Open for Reasonable Gun Restrictions Outside the Home

Despite its recognition of an individual right under the Second Amendment, the Supreme Court in Heller took pains to make clear that the right “is not unlimited”: It is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”104 Rather, Heller expressly left the door open for governments to impose reasonable restrictions on gun possession and ownership,105 and the Court in McDonald “repeat[ed] those assurances.”106

As an initial matter, the Court in Heller made clear that several types of existing gun regulations remain “presumptively lawful.”107 Such regulations include, but are not limited to, “longstanding” restrictions on the possession of firearms by felons and the mentally ill, laws prohibiting the possession of firearms in “sensitive places” like “schools and government buildings,” and bans on especially dangerous weapons, including military-style firearms.108 In addition, Heller reaffirmed that the Second Amendment “does not prevent the prohibition of private paramilitary organizations.”109

Moreover, the Heller Court suggested that, even if a gun regulation is not presumptively lawful, it would be subject to a traditional means-ends scrutiny analysis that balances the government’s interest in regulation with the burden on the individual’s exercise of the right.110 But the Court declined to elaborate on the precise level of scrutiny that courts should apply, given that the District of Columbia’s law would have failed “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.”111

Lower Courts Have Interpreted Heller to Permit Reasonable Firearms Regulations

Lower courts have taken seriously the Supreme Court’s statement in Heller that the Second Amendment right is not unlimited and that ample room remains for reasonable firearms regulations. As noted above, however, Heller left open important questions about how lower courts should apply that decision in cases challenging firearms regulations under the Second Amendment.

Since Heller, most (but not all) federal courts have answered those questions by adopting a two-step framework for analyzing such challenges, under which a wide array of restrictions have passed constitutional muster. Under this framework, courts ask: “(1) Is the restricted activity protected by the Second Amendment in the first place? (2) If so, does it pass muster under the appropriate level of scrutiny?”112

Step One – Is the Restricted Activity Protected by the Second Amendment?

Under the first step, courts determine “whether the challenged law burdens conduct that falls within the scope of the Second Amendment right, as historically understood.”113 If the court finds that a firearms regulation does not implicate the Second Amendment, it will uphold the regulation without proceeding to the second step.114

As part of this initial inquiry, courts have looked to history to determine “whether the law harmonizes with the historical traditions associated with the Second Amendment guarantee,”115 including “whether the record includes persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical scope of the Second Amendment.”116

Among other things, courts have examined Founding-era laws to determine whether proscriptions similar to the one at issue existed when the Constitution was ratified.117 Courts have also looked to evidence of nineteenth-century courts and commentators to determine whether, even if such prohibitions do not date to the Founding era, they are nonetheless sufficiently “longstanding.”118 If the court finds the restriction at issue has a sufficient historical pedigree, it will be considered outside the scope of the Second Amendment’s protection.119

In addition, some courts have found that the “presumptively lawful” regulations identified in Heller necessarily fall outside the Second Amendment’s protections, with no need to conduct a further historical analysis.120 The Fourth Circuit, for instance, applied a more “streamlined” analysis when it rejected a challenge to the federal statute prohibiting felons from possessing firearms, reasoning that, “[a]mong the firearms regulations specifically enumerated as presumptively lawful in Heller are ‘longstanding prohibitions on the possession of firearms by felons.’” 121

Because the list of presumptively lawful regulations in Heller was—explicitly—not exhaustive, some courts have upheld regulations similar, but not identical, to the ones the Supreme Court expressly mentioned. For example, in 2010, the Eleventh Circuit rejected a challenge to the federal law banning possession of firearms by persons convicted of domestic violence, 18 U.S.C. § 922(g)(9).122 Although the court acknowledged that Heller’s list of “presumptively lawful” regulations did not include that specific prohibition, it reasoned that § 922(g)(9)’s ban served the same purpose as felonin-possession statutes: keeping firearms out of the hands of dangerous individuals.

Step Two – Does the Restriction Pass the Means-Ends Scrutiny Test?

If a regulation burdens a right historically thought to be within the scope of the Second Amendment, courts will analyze the regulation under traditional means-ends scrutiny. In other words, courts will ask whether the government’s interest in the regulation is sufficiently great and whether the regulation burdens an individual’s Second Amendment rights no more than necessary to achieve that governmental interest. As noted above, the Supreme Court in Heller expressly declined to specify the precise level of scrutiny that applies, while ruling out “rational basis” review: “If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”123

Accordingly, courts have been left to choose between strict and intermediate scrutiny. The federal courts of appeals have taken varying approaches to determining which level of scrutiny applies, and their decisions on this question have been highly fact-specific.124 Courts most often most have reasoned that the level of scrutiny turns on how heavily a law burdens an individual’s Second Amendment rights. As the Fifth Circuit put it, “[a] law that burdens the core of the Second Amendment guarantee—for example, ‘the right of law abiding, responsible citizens to use arms in defense of hearth and home’—would trigger strict scrutiny, while a less severe law would be proportionately easier to justify.”125

Although federal courts might apply strict scrutiny to a firearms restriction that burdens the core of the Second Amendment, most federal courts of appeals have applied intermediate scrutiny to gun laws that do not encroach on an individual’s right to bear arms at home or for self-defense.126 In practice,“[t]here is . . . near unanimity in the post-Heller case law that when considering regulations that fall within the scope of the Second Amendment, intermediate scrutiny is appropriate.”127 Indeed, since Heller, no federal court of appeals has adopted strict scrutiny in a Second Amendment challenge to a gun-safety regulation,128 although several dissenting opinions have suggested that strict scrutiny should apply to such challenges.129

Under intermediate scrutiny, “the government must demonstrate . . . that there is a ‘reasonable fit’ between the challenged regulation and a ‘substantial’ government objective.”130 The Second Circuit, for instance, applied this standard to uphold New York’s and Connecticut’s prohibitions on certain semiautomatic firearms because they were “substantially related to the achievement of an important governmental interest.”131 The court made clear that the states unquestionably “have ‘substantial, indeed compelling, governmental interests in public safety and crime prevention.’” 132 And, “afford[ing] substantial deference to the predictive judgments of the legislature,” the court concluded that the states had “drawn reasonable inferences based on substantial evidence” and “tailored the legislation at issue to address” the special dangers posed by “these particularly hazardous weapons.”133 Because the challenged laws were “substantially—even if not perfectly— related to the articulated governmental interest,” they survived intermediate scrutiny and were upheld.134

However, in one case, the Seventh Circuit applied a standard it described as “more rigorous” than intermediate scrutiny but “not quite ‘strict scrutiny’” when it struck down a law banning firing ranges in the City of Chicago. 135 In that case, the court explained that the prohibition was “a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense,” and accordingly came “much closer to implicating the core of the Second Amendment right” than other gun-safety laws that warrant intermediate scrutiny.136 As the Seventh Circuit explained in a later case:

[A] law that curtails the fundamental right of law-abiding citizens to carry a weapon for self-defense must pass even more exacting (although not quite strict) scrutiny. Defenders of such a law must show a ‘close fit’ between the law and a strong public interest. . . . That ‘close fit’ is functionally equivalent to the ‘narrow tailoring’ requirement for content-neutral speech restrictions to which strict scrutiny is inapplicable.137

No other circuit has adopted this approach.

State and Local Governments Generally May Restrict the Carrying of Firearms at Public Events Consistent with the Second Amendment

Under the analytical approach outlined above, restrictions on carrying firearms at public events or demonstrations for public-safety reasons likely will, as a general matter, survive challenges brought under the Second Amendment. Federal courts have upheld firearms regulations in a variety of relevant areas that provide guideposts for state and local governments that wish to limit the use of weapons at public events, whether via law, ordinance, or otherwise.

Bans on Carrying Weapons in Public

Many federal courts of appeals have recognized that state and local governments have broad discretion to regulate the carrying of firearms outside the home. This case law suggests that temporary restrictions on open and concealed carrying at specific public events would pass constitutional muster, even if imposed on individuals who possess the required permit or live in states that allow the carrying of firearms without a permit. As the Fourth Circuit has explained, “as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self defense.”138 Applying similar reasoning, the First, Third, and Fourth Circuits all have upheld schemes requiring permits, issued only upon a showing of good cause, for both open and concealed carrying of firearms in public places.139 In addition, several circuits have upheld various permitting schemes limiting the ability of individuals to carry concealed firearms in public,140 and the Seventh Circuit recently upheld an Illinois prohibition on granting concealed-carry licenses to out-of-state residents whose states do not impose licensing requirements that are “substantially similar” to those of Illinois.141

Prohibitions on Firearms on Government Property

Courts also have upheld prohibitions on carrying firearms on government property, which suggests that state and local governments could lawfully restrict the carrying of firearms during public events on public property such as public parks, streets, or other government owned land. As noted above, Heller itself stated that laws prohibiting the carrying of firearms in “sensitive places” like “schools and government buildings” are “presumptively lawful.”142 Lower courts have followed suit. For instance, the Fourth Circuit in 2011 upheld a ban on handguns in vehicles in national parks.143 Although it avoided resolving whether national parks qualify as “sensitive places” under Heller, the court held that the ban “passes constitutional muster under the intermediate scrutiny standard,” noting in particular that the park at issue was a place “where large numbers of people, including children, congregate for recreation. Such circumstances justify reasonable measures to secure public safety.”144 Other courts have found similar public-safety concerns sufficient to uphold a ban on possession of firearms on county property,145 a prohibition on carrying firearms on U.S. Postal Service property,146 a federal statute banning the possession of firearms on the U.S. Capitol grounds,147 and a state regulation restricting the carrying of weapons in places of worship.148

Anti-Paramilitary Laws

Courts have long recognized that state laws prohibiting marching or drilling with firearms, as well as laws banning paramilitary organizations, are consistent with the Second Amendment. This precedent supports the inclusion of such restrictions in public-event permits. In 1886, the Supreme Court in Presser v. Illinois held that the Second Amendment did not prohibit a state law that forbade “bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.”149 As noted above, Heller made clear that the recognition of an individual right to bear arms in certain circumstances did not undermine Presser’s holding. Indeed, many states have longstanding anti-paramilitary laws or laws banning parading or marching with firearms, which remain lawful under Heller. Such laws are discussed in further detail below.

A content-based restriction is based on the topic discussed or the idea or message expressed. It would, for example, be a content-based restriction on speech to deny a permit for a demonstration to a white-nationalist group because of the subject matter of the planned demonstration or because of concerns about how listeners will react to the particular anticipated message. See Chapter I.A.1.a

Yes. Localities may impose different conditions based on the intended use of the property. Thus, localities may impose different conditions on the use of a park for a sports tournament or other non-expressive activity than they would impose for expressive activity like a political protest. Conditions or restrictions that apply to the use of public property for expressive activity will be evaluated depending on whether they are contentneutral or content-based. Localities should not impose content-based restrictions on speech unless they are the “least restrictive means” of achieving a compelling governmental interest. Outright denial of a permit to a disfavored group is unlikely to satisfy that test. On the other hand, content-neutral time, place, and manner restrictions on expressive activity need not be the least restrictive means of satisfying a governmental interest; instead, they must be “narrowly tailored” to serve a significant governmental interest. And they must leave open ample alternative channels for communication. See Chapter I.A.1

Denial of a permit based on the anticipated reaction of counter-protesters is an impermissible “heckler’s veto” that courts generally treat as invalid. See Chapter I.A.1.a.ii

Yes, but speakers must be able to reach the intended audience without undue cost and effort. If, for example, a permit is requested for a demonstration outside city hall against an action the city council has taken, local authorities should not condition the permit on the demonstration taking place at a location far from city hall, as a court is likely to view that relocation as thwarting the intended speech from reaching its intended audience. On the other hand, permit applicants are not necessarily entitled to their first choice of locations if the government has a significant content-neutral interest in having the event take place elsewhere. One such governmental interest might be the capacity of the requested location to accommodate safely the number of people likely to attend. See Chapters I.A.1.c and III.A.2.a

Jurisdictions should be cautious when requiring a location change for content-based reasons such as concerns about violence from counter-protesters. This type of condition would be subject to strict scrutiny and could be justified only if it were the only way adequately to protect public safety. Jurisdictions should also be cautious about treating protesters and counter-protesters differently, as this likely would be considered contentbased. See Chapter III.A.2

The government generally may not treat groups differently based on the message they seek to express, because that would be a content-based restriction that is unlikely to be the least-restrictive way to satisfy the government’s interest in public safety, even if that interest is compelling. See Chapter I.A.1

If the government gives exclusive use of public property to a private entity for a private event—through a lease, permit, or other arrangement—the private entity would be able to exclude people whom the private entity has not invited. Common examples include the lease of a park for a wedding or family reunion. Local jurisdictions should exercise caution, however, not to attempt to exploit exclusive-use arrangements as a means to avoid what would otherwise be potential First Amendment constraints. If the jurisdiction ordinarily issues permits for protests and demonstrations, but changes its practice to a leasing arrangement for a specific protest event at which the protesters seek to exclude counter-protesters, that change of practice could be vulnerable to legal challenge. See Chapters III.B.2.b.ii and V.A

Although there is no clear law on this, a weapons-ban or other policing measure based on anticipated violence between ideologically opposed camps that have clashed in the past arguably should be treated as content-neutral. That is because such measures would not be based on the messages the groups intend to express on the day in question, but would be based on the demonstrated history of violence between them—regardless of their message. Even if considered content-based, where there is a history of violence between hostile factions, the government’s interest in public safety may be compelling enough to satisfy strict scrutiny. Before imposing a weapons ban, jurisdictions should determine whether the ban could be prohibited by a state firearms-regulation preemption statute. See Chapters I.A.1.a.ii and II.F; III.A.2.c

For content-neutral time, place, and manner restrictions, many governmental interests are considered “substantial,” including maintaining public property in clean and usable condition, ensuring sidewalks and streets remain safe and accessible, ensuring that multiple users can use limited space, and protecting public health, safety, and property. There is less legal guidance about which governmental interests are compelling enough to justify content-based restrictions, but a significant and documented threat to public safety based on past violence or credible information likely would be significant to any court’s analysis of whether a reasonable response to the threat is narrow enough to satisfy strict scrutiny. See Chapter I.A.1.b

It would be an unconstitutional content-based restriction to charge a group whose message is disfavored a higher permitting fee on that basis alone than the fee it charges other permit applicants. See Chapter III.A.3.b

The decision to search or not to search—whether through bag checks, magnetometers, pat-downs, or some other method—should not be left to the unfettered discretion of the police or other government officials. Even when searches may be justified as contentneutral time, place, and manner restrictions justified by a substantial public safety interest, they must be done pursuant to objective, established standards. See Chapters I.A.2.d and III.B.1.a

It would be an unconstitutional content-based restriction to charge a group whose message is disfavored a higher permitting fee on that basis alone than the fee it charges other permit applicants. See Chapter III.A.3.b

The decision to search or not to search—whether through bag checks, magnetometers, pat-downs, or some other method—should not be left to the unfettered discretion of the police or other government officials. Even when searches may be justified as contentneutral time, place, and manner restrictions justified by a substantial public safety interest, they must be done pursuant to objective, established standards. See Chapters I.A.2.d and III.B.1.a

It does not violate the Second Amendment for the government to prohibit firearms at public events. The Supreme Court made clear in its 2008 decision in District of Columbia v. Heller that the Second Amendment right is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Thus, the Supreme Court left the door open for governments to impose reasonable safety regulations on the possession and use of firearms.

Before prohibiting or restricting firearms, officials will need to check other provisions of state law. Just because a state might allow the open carrying of firearms does not necessarily mean that local officials must allow open carrying at all public events, particularly where there may be public safety concerns about potential violence. However, many states prohibit local authorities from taking any action that regulates the carrying or possession of firearms. Depending on their wording, these state laws may beinterpreted broadly to prohibit even temporary restrictions on carrying weapons at public events. See Chapters I.B and II.F

Bans on carrying weapons in public: Governments have broad authority to regulate the carrying of weapons outside the home. Temporary restrictions on open and concealed carrying at specific public events would likely be constitutional, even if imposed on individuals who have the required permit or live in states that allow the carrying of firearms without a permit. But local officials should consult state law to determine if the state government has preempted local officials from regulating firearms even for temporary and geographically limited purposes during public events. See Chapters I.B.4.a and II.F

Prohibitions on firearms on government property: Prohibitions on carrying firearms on government property also have been upheld repeatedly against Second Amendment challenge. This suggests that state and local governments could lawfully restrict the carrying of firearms during public events on public property such as public parks, streets, or other government-owned land or buildings. Again, local jurisdictions should ensure that such restrictions would not run afoul of state firearms regulation preemption laws. See Chapters I.B.4.b and II.F

Prohibitions on private paramilitary organizations and paramilitary activity: It is well established under U.S. Supreme Court precedent that the Second Amendment does not prevent states from prohibiting paramilitary organizations, and most states do so. Fortyeight states include a provision in their constitutions that requires all military units to be strictly subordinate to and governed by the civil power, which generally refers to the governor or his or her designee. Many states also have state laws prohibiting people from associating together as a military unit and from parading or drilling with firearms in public. And many states have state laws banning teaching or assembling to train or practice in using firearms or other techniques capable of causing injury or death, for use in a civil disorder. See Chapters I.B.4.c and II.B

Courts generally apply a two-part test when analyzing such challenges. See Chapter I.B.3

Step One: First a court will ask whether the regulation restricts activity that is protected by the Second Amendment. A regulation restricts activity that is not protected by the Second Amendment (and restrictions on it thus will pose no Second Amendment problem) if it satisfies one of the following two criteria:

a. It is the type of regulation that the Supreme Court in Heller deemed “presumptively lawful.” Such presumptively lawful regulations include, among other things, prohibitions on the possession of firearms in “sensitive places” such as schools and government property and laws prohibiting private paramilitary organizations.

OR

b. The conduct that the regulation restricts was not historically understood to be protected by the Second Amendment. To make this determination, courts often will look at 18th and 19th century laws to determine whether prohibitions similar to the one at issue existed when the Constitution was ratified or whether they are sufficiently “longstanding” to fall outside the Second Amendment’s protections. See Chapter I.B.3.a

Step Two: If a regulation burdens conduct that is protected by the Second Amendment, that does not mean that it is automatically unconstitutional. Instead, courts will apply “means-ends scrutiny.” Under this analysis, a court asks whether the government’s interest in the regulation is sufficiently great and whether the regulation burdens an individual’s Second Amendment rights no more than necessary to achieve that governmental interest. If the answer is yes, the regulation will be upheld. See Chapter I.B.3.b

The Supreme Court in Heller did not answer this question. Instead, it left lower courts to decide whether “intermediate scrutiny” or “strict scrutiny” should apply. The lower courts are nearly unanimous that intermediate scrutiny applies to gun restrictions that apply outside the home. Under intermediate scrutiny, a regulation must be substantially related to furthering an important government interest. Strict scrutiny is more rigorous: Under that test, a regulation must be the most narrowly tailored possible to achieve a compelling government interest. See Chapter I.B.3.b

No. In the Supreme Court’s landmark Heller decision, the Court expressly declined to specify the level of scrutiny that courts should apply. The Court made clear that the District of Columbia’s near-absolute ban on the possession of a handgun impermissibly burdened individuals’ core Second Amendment right to possess handguns in the home for self-defense under any level of scrutiny. See Chapters I.B.2 and I.B.3.b

In cases involving restrictions on the possession and use of firearms outside the home, federal courts have applied intermediate scrutiny in the vast majority of cases. In one case, Ezell v. City of Chicago, the Seventh Circuit applied a standard it described as “more rigorous” than intermediate scrutiny but “not quite ‘strict scrutiny’” when it struck down a law banning firing ranges in the City of Chicago. It explained that the regulation at issue in that case came close to burdening the core Second Amendment right to self- defense. No other court has adopted this approach. See Chapter I.B.3.b

Yes. States and localities should be aware that even if a regulation passes muster under the Second Amendment to the U.S. Constitution, state constitutional or statutory law might restrict their ability to impose certain firearms regulations. Therefore, local governments should consult their state constitutions and codes to make sure that any firearms restrictions they plan to impose are not prohibited under state law. See Chapter I.B

State constitutions may include provisions protecting the right to bear arms that are different from and, in some cases, broader than the Second Amendment. See Chapter I.B