The Bill of Rights gives us the right to bear arms and the right to assemble peacefully.
The question is, does it give us the right to do both at the same time?
That question has become an urgent one in the wake of a fatal shooting in Denver after a pair of rallies in Civic Center Park a week ago Saturday. An unlicensed security guard, Matthew Dolloff, 30, is expected to be charged with second degree murder in the fatal shooting of 49-year-old Lee Keltner following a “Patriot Muster” rally and a counterprotest billed as a “BLM-Antifa Soup Drive.”
The presence of guns at protests has led to some tense moments and tragedies in recent months. A protest turned violent in Aurora in July when shots were fired after a Jeep drove into a crowd of anti-police violence protesters. Two of the protesters were hit by gunfire and hospitalized. In Austin, Texas, a protester was shot in late July, and a 17-year-old was charged in the shooting deaths of two protesters in Wisconsin in late August.
The incidents raise the question of whether the legal presence of weapons at protests is ratcheting up the risks? Is mixing weapons and agitated demonstrators a good idea? More broadly, what exactly has our country become? Our streets are beginning to resemble a "Call of Duty" video game.
“Anytime you introduce firearms to any event it just makes it more complicated,” Harry Glidden, Aurora deputy police chief, recently told reporters for a public media reporting project on the role of guns in American life.
Colorado is one of 36 states where firearms are allowed at protests, according to The Trace reporting project. In Denver those guns must be concealed, as compared to most of the rest of the state, where guns can be carried openly at rallies.
Colorado allows individual cities like Denver to choose concealed or open carry, but preempts them from making their own rules beyond that.
But just because we can do something doesn't mean we should.
Trace's reporting shows seven states, along with the District of Columbia, that bar firearms at rallies.
The Second Amendment doesn’t prevent states from imposing some restrictions on the right to bear arms.
“Like most rights, the Second Amendment right is not unlimited,” Supreme Court Justice Antonin Scalia wrote in a 2008 opinion. “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
In the specific setting of a political demonstration, courts could find that carrying arms has the effect of chilling the free expression of those on the other side.
So the state Legislature could probably change the law if it wanted to restrict guns at protests and rallies, and there has been some talk among legislators about doing so recently, but no proposed bills yet.
Gov. Jared Polis told our reporter Marianne Goodland on Friday that he would oppose such a change.
"I'm against that,” he told Goodland. “People have a right to bear arms, to protect themselves. … No one checks their rights at the door when they're exercising free speech."
Clay Turner, a longtime contributor to America’s First Freedom, the official journal of the National Rifle Association, seconds that sentiment.
"The idea that the presence of a gun increases the risk of violence is wrong. Second Amendment rights don’t restrict First Amendment rights; they guarantee them. Even the most conservative studies reveal that Americans use firearms to prevent violence far more often than to do violence.”
After the deaths of two protesters in Michigan, city leaders in Kalamazoo concluded the opposite, that armed protesters increased tensions and escalated the violence in Kalamazoo.
“Why do we need people carrying weapons in our communities? Why do we have to have open carry?” asked state Rep. Cynthia Johnson in an interview with WWMT. She sponsored a bill to ban open-carry firearms in Michigan that is still pending.
“I’m a gun owner. So it’s not like we want to take away guns from people,” she said. “There’s no reason to have these weapons at these events. You have hot heads. There’s a keg of dynamite that’s being encouraged.”
The problem is never the responsible gun owners, but those trying to take advantage of these volatile situations to play out their militant fantasies.
A disturbing photo surfaced recently, for example, that shows a man in combat fatigues holding an AR-15 while standing atop a parking garage overlooking a George Floyd protest at City Hall in downtown Colorado Springs. A nearby sighting scope is trained on the crowd below.
The incident at last week’s rally in Denver shows just how quickly confrontations at these rallies can escalate when guns are involved.
The security officer, Dolloff, was guarding a 9News producer when he got into a verbal confrontation with Keltner, according to the arrest affidavit. Keltner then slapped Dolloff on the side of his head, and Dolloff pulled a gun from his waistband, the arrest affidavit says.
Keltner discharged pepper spray at Dolloff, according to the affidavit, and Dolloff shot Keltner dead.
An attorney for Dolloff said Monday that the security guard was acting in self-defense when he shot Keltner.
The Denver Gazette found that Dolloff was not licensed to provide private security services in Denver, and 9News staff did not know he was armed, nor did they request an armed guard for Saturday’s protest, 9News has said.
But none of that really matters. Dolloff, according to Colorado law, was perfectly within his rights to have that gun at that rally.
The question remains: Should he have been?