As nation braces for armed protests, First and Second amendments intersect — or collide

John D'Anna, Arizona Republic
·11 min read

PHOENIX – Last week, as insurrectionists stormed the seat of democracy, a smaller crowd – nowhere near as violent but just as angry – gathered at the Arizona Capitol to protest the results of the 2020 presidential election. Many were armed.

In September, more than 300 counter-protesters, many carrying AR-15s and side arms, showed up at a Black Lives Matter rally in Prescott, saying they intended to protect their community from rioting and looting.

And earlier last summer, four men armed with assault-style weapons showed up in downtown Mesa under the guise of protecting local businesses during street protests in the wake of the death of George Floyd.

So after the U.S. Capitol riot on Jan. 6, when new warnings arose about the possibility of nationwide armed protests on the weekend before Joe Biden's inauguration, it raised the question of how things in Arizona might be any different from so many weekends before.

USA TODAY/Suffolk Poll: Americans, braced for violence at the inauguration, see democracy damaged after Trump

While the sight of armed protesters may not be a uniquely Arizona phenomenon, it is at least a signature image of modern times. In Arizona, an "open carry" state that places few limits on when and where a person can bear arms, the First and Second amendments regularly intersect.

The consequences of these intersections have, in the past, been grave. In Michigan, another open-carry state, armed protesters stormed the statehouse in a demonstration against COVID-19 restrictions, and in Wisconsin, a 17-year-old who was carrying an AR-15 to protect local businesses from looting, shot three people, killing two of them, during a confrontation with Black Lives Matter protesters.

Whether or not the days ahead bring more unrest, the displays of firepower at events where emotions and political passions run high raises important questions not only about how to protect public safety while at the same time guarding individual liberties.

"In Arizona, we have very liberal gun rules," said Mesa Assistant Police Chief Ed Wessing, who oversees the department’s patrol operations citywide. "People can open carry, and we deal with that routinely, so the sight of people with weapons publicly out in and of itself isn’t always an alarming visual."

But he added: "In the context of some of the protests where you have angry, potentially volatile crowds, any time that we have armed individuals on either side of the discussion, it's concerning."

Seeing it up close

While Arizona hasn’t experienced deadly violence at a recent protest, many worry the potential is there.

When Democratic state Rep. Daniel Hernandez drove to the state Capitol on Jan. 6, he saw a crowd of angry protesters, including at least two men wielding AR-15s, and decided to turn around, go home, and wait them out.

"I didn't feel like it was a safe or good idea for me to go into a very angry crowd," said Hernandez, adding that he and other lawmakers have been yelled at and harassed on a number of occasions by protesters who are angry over the defeat of President Donald Trump.

"You know, alarms are going off inside my head saying 'this is probably not a great time to go to the Capitol. What you need to do right now is not urgent. Come back later,' which is disappointing because I've now had to change the way that I'm doing my job."

Hernandez knows first-hand what can happen when guns show up at public events.

Almost exactly a decade ago, he was an intern for former U.S. Rep. Gabriel Giffords and was working with her at the Congress on a Your Corner event outside a Tucson-area grocery store when a gunman opened fire. Six people were killed, and 13 others were wounded. Giffords was shot in the head and gravely wounded, and Hernandez is credited with helping to save her life. He had met and spoken with most of the people who died.

Ten years later, he saw the attack on the U.S. Capitol and worries about what it could mean here

“It's never far from my mind,” Hernandez said.

“I’m very concerned with the heightened level of rhetoric, particularly among the people who were helping to do the protests and the riots in Washington, D.C. and now here in Arizona,” he added.

On Friday, the Pentagon announced that because of "disturbing online chatter" about impending protests, it was increasing the number of National Guard forces on the ground in Washington, D.C., to 25,000 in advance of Wednesday's inauguration. Major airlines have announced they are prohibiting the transportation of any firearms, even in checked baggage, on flights to Washington.

While Washington has strict regulations governing weapons, Arizona does not.

State Rep. Jennifer Longdon, a gun owner and gun-violence survivor, said guns are very much a part of the Arizona ethos, but questions the wisdom of bringing guns to protests.

"We have to remember that Arizona is the youngest state in the continental U.S.," Longdon said.

"It wasn't all that long ago that … cowboys used to come galloping down here shooting at the winged Victory," she said, referring to the statue atop the state capitol dome.

"Arizona is still very much a place where, especially in our outlying areas, a gun is still a tool of the trade and occupational tool, just like a hammer or a computer is in some other jobs, and I respect that," she said.

“Where we're having an issue is folks who are coming down with what seems to be an implied message that if I don't like what you say, I have a gun, and I think that as a gun owner myself, we have to look at how we can quell free speech with this implied threat,” she said.

“I think about the wisdom of my grandfather — just because you can doesn't mean you should, and I personally don't find it appropriate.”

Armed individuals stand guard outside the state Capitol in Phoenix, during a pro-Trump rally, as the U.S. Congress meets in Washington, D.C., to certify the results of the presidential election, on Jan. 6, 2021.
Armed individuals stand guard outside the state Capitol in Phoenix, during a pro-Trump rally, as the U.S. Congress meets in Washington, D.C., to certify the results of the presidential election, on Jan. 6, 2021.

Longdon, a Democrat also said has some concerns about the role some of her colleagues may have played in the Jan. 6 attack on the U.S. Capitol. At least one sitting Representative, Republican Mark Finchem of Oro Valley, was at the Capitol that day and tweeted remarks that appeared to be supporting the insurrectionists. A former state legislator, Anthony Kern, was also photographed at the capitol that day.

“I want to believe that that we're all here working under the same set of rules,” she said. “I do have concerns that we may have among us some individuals who aren't playing out of the same playbook.”

Phillip Hawkins, a 22-year-old left-leaning African-American activist who has attended a number of protests, said he believes the only reason to carry a gun at a protest is to intimidate.

“I've always preached against gun ownership,” he said, “and that's because I kind of figured the less guns in the world, the less likely you'll be shot.”

However, after seeing so many guns at protests he was participating in, he decided to take up arms himself and doesn't discourage those on the left from doing the same.

“The reason why there are so many right-wing gun holders is because they've got a culture around it,” he said. “It's a toxic culture. It's a scary culture. It's a culture based on intimidation.”

He's since brought a variety of firearms, concealed and openly carried, to various protests.

Over the summer, he carried a shotgun as he joined the counterprotesters at a series of contentious “back the blue” rallies at a Gilbert intersection, where many of the participants on pro-police side were armed.

Hawkins said he believes those who bring guns to protests are “bringing them to assert dominance,” and to send a message that, “I'm stronger than you. I'm better than you are. More equipped than you.”

Hawkins said he views his guns as an expression of counter-intimidation.

“Totally,” he said. “Quien es mas macho?...I bring a gun when I think it's the most practical situation or when everybody else is going to be bringing a gun. I don't want to be the guy to bring a sword to a gunfight.”

The legal case

The intersection of the First and Second Amendments is a tricky one for legal scholars as well as law enforcement to navigate, especially when the very act of carrying a gun may be considered a form of free expression.

But the question of intimidation hinges on how the person actually behaves, according to Paul Bender, a professor emeritus at Arizona State University’s Sandra Day O’Connor College of law.

"You still have your right to bear arms even though you're giving a speech, but you don't have the right to intimidate somebody," said Bender. "So it depends really on what you're saying. The gun might back up what you're saying and make it sound more dangerous. But the real question is, are you behaving in a dangerous way? And that's a mixture of what you say and what you have with you."

Bender said the presence of guns is only part of the equation.

"It's not the whole question of whether you have a gun or you don't have a gun. Without a gun, you can be intimidating, and with a gun you can be not intimidating," he said.

"My preference would be not to permit the carrying of guns openly in public places, but that's not the law. As long as you have the constitutional right to have the gun, you have the constitutional right to have the gun. Unless you do something beyond just having the gun, you're not acting illegally."

Bender said that dressing in an intimidating fashion, which includes carrying a weapon, could potentially be considered a form of freedom of expression and would be permissible under the law.

"Just because you dressed like a terrorist and you have a gun, unless you do something like a terrorist," Bender said. "I think you probably have a constitutional right to do that."

Armed men walk around the grounds of the state Capitol in Phoenix during a pro-Trump rally as the U.S. Congress meets in Washington, D.C., to certify the results of the presidential election, on Jan. 6, 2021.
Armed men walk around the grounds of the state Capitol in Phoenix during a pro-Trump rally as the U.S. Congress meets in Washington, D.C., to certify the results of the presidential election, on Jan. 6, 2021.

"In the United States, you can’t have any law that says ‘you look dangerous, so we're going to get rid of you. You can't be here just because you look dangerous,'" he said. "You're entitled to wear whatever you want to wear unless you make some explicit threat toward somebody else."

That can present a particular problem for law enforcement when it comes to protecting public safety, Bender said.

"To me, the important thing is to resolve any situation in favor of safety. So I would recommend that the police stop somebody that they think is dangerous, even though it might be that the police are acting improperly. But if you have to take a chance, I would take a chance on safety rather than the chance I'm letting somebody get killed with a gun."

Wessing, the Mesa assistant police chief, agreed it's a difficult balance.

"It is a challenge, and it's always a concern," Wessing said.

Wessing said it’s essential for law enforcement agencies to work together and to do their homework before a protest or demonstration to find out as much as possible about the groups involved and to anticipate how they may act.

"There’s a lot of back work that goes on to identify individuals and (learn) if they are they just protesting or they potentially participating in some type of a hate speech because of their social media profiles."

That information also helps officials in deciding how to deploy both uniformed and undercover officers and how to handle the crowds.

"If we know we have a planned protest at, say, city hall, how are we going to separate these groups, still allowing them to exercise their First Amendment rights, but still provide for a safe zone for that free speech, knowing that we may have armed individuals?" Wessing said.

An armed man stands guard outside the state Capitol in Phoenix during a pro-Trump rally as the U.S. Congress meets in Washington, D.C., to certify the results of the presidential election on Jan. 6, 2021.
An armed man stands guard outside the state Capitol in Phoenix during a pro-Trump rally as the U.S. Congress meets in Washington, D.C., to certify the results of the presidential election on Jan. 6, 2021.

"If you have a group that's protesting, we always have to be concerned about that counterprotest that may want to come and disrupt that," he said.

He said officers and city officials try to meet with protest and counterprotest organizers whenever possible.

"Even with groups that we may not philosophically agree with," he said. "We work with them prior to trying to lay out some ground rules of what's lawful, what's unlawful. This is what we are going to do. Here's where we want you to be and really trying to be fair to everyone," he said.

"But at the same time, we have to ensure that we're doing what we can to protect the safety of not just the people protesting, but our community that happens to be in the crosshairs."

Follow John D'Anna on Twitter @azgreenday.

This article originally appeared on Arizona Republic: In armed protests, First and Second amendments intersect – or collide