Relevant Federal & State Laws

Criminal Prohibitions on Certain Types of Violence

All 50 states and the District of Columbia criminalize violent conduct that results in injury to persons and property. Federal and state laws also provide separate and often more stringent penalties for hate crimes and acts of terrorism because these types of crimes seek to intimidate and coerce whole communities, thereby affecting a broader array of people than the immediate target. Protecting against and prosecuting hate crimes and domestic terrorism sends a critical message that the community will not tolerate these kinds of crimes.

Hate-Crimes Statutes

Hate crimes are violent crimes in which the perpetrator targets an individual, group, or institution because of the actual or perceived characteristics of the victim. Hate crimes can include assault, murder, arson, vandalism, and threats and conspiracies to commit such crimes.

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act makes it a federal crime to willfully cause bodily injury, or attempt to do so using a dangerous weapon, because of the victim’s actual or perceived race, religion, ethnicity, national origin, gender, sexual orientation, gender identity, or disability. ¹⁷² Forty-five states and the District of Columbia also have their own hate-crime laws.¹⁷³ While some states’ hate-crime statutes cover a more limited set of characteristics—e.g., only race, ethnicity, and religion—others extend to the same array of protected characteristics as the Shepard Byrd Act. In Wisconsin v. Mitchell, the U.S. Supreme Court upheld the constitutionality of Wisconsin’s hate-crimes law as consistent with the First Amendment.¹⁷⁴

Federal law also includes other hate-crimes provisions that may be relevant when individuals seek to engage in violence at public demonstrations. For example, it is unlawful for two or more people to “conspire to injure, oppress, threaten, or intimidate” others “in the free exercise or enjoyment” of any constitutional right or federal statutory right.¹⁷⁵ Federal law also prohibits the intentional defacement, damage, or destruction of religious real property “because of the religious character of that property” or because of “the race, color, or ethnic characteristics” of the people associated with that property.¹⁷⁶ This statute also criminalizes intentionally obstructing, by force or threat of force, any person from enjoying “that person’s free exercise of religious beliefs.”¹⁷⁷

Many state-law provisions allow victims of hate crimes to seek civil remedies.¹⁷⁸ Where bias-motivated conduct is recurring, some states also allow that state’s attorney general to seek an injunction to prevent such harm from happening in the future.¹⁷⁹

Domestic-Terrorism Statutes

Domestic terrorism is defined by federal law as conduct that occurs primarily in the United States, that is a crime under federal or state law, that “involve[s] acts dangerous to human life,” and that “appear[s] to be intended” to (a) “intimidate or coerce a civilian population,” (b) “influence the policy of a government by intimidation or coercion,” or (c) “affect the conduct of a government by mass destruction, assassination, or kidnapping.”¹⁸⁰ Bias-motivated violence may qualify as both a hate crime and domestic terrorism, depending on the perpetrator’s intent. For example, an individual who commits criminal acts of violence against black people in order to “spark a race war” may be engaging in both domestic terrorism and a hate crime. At the same time, some acts of domestic terrorism may be motivated by ideologies unrelated to bias. For example, the 1995 Oklahoma City bombing, one of the deadliest domestic terrorism attacks in U.S. history, was motivated primarily by animus against the federal government.

Although federal law defines domestic terrorism, there is no generic federal crime of “domestic terrorism.”¹⁸¹ Instead, federal law creates dozens of “terrorism” crimes applicable to specific circumstances—such as using a bomb, biological agent, or radiological dispersal device¹⁸²—but does not penalize as “terrorism” violent acts committed domestically using firearms or vehicles when not committed on behalf of a foreign terrorist organization like al Qaeda or the Islamic State and not targeted at U.S. officials or U.S. property.¹⁸³ While federal officials sometimes describe such acts as domestic terrorism, those who commit mass shootings or vehicle attacks for what are thought of as “domestic” extremist causes like white supremacy cannot be charged with a federal crime of terrorism.¹⁸⁴

At least 25 states and the District of Columbia have statutes that criminalize domestic terrorism or impose a sentencing enhancement for acts of terrorism.¹⁸⁵ These statutes generally employ a similar definition for the requisite intent as that used in the federal definition. States vary, however, in the types of criminal conduct they deem to be “acts of terrorism” when committed with the requisite intent. At a minimum, state terrorism offenses cover conduct that causes or creates a risk of death or serious physical injury, and many also include serious property damage. Some state statutes make clear that peaceful protests are not acts of terrorism, although there should be no doubt about this proposition.¹⁸⁶

State Anti-Paramilitary Laws

In August 2017, the Unite the Right rally turned violent as ideologically opposed groups clashed in the streets of Charlottesville, Virginia. Several white-nationalist groups, utilizing centralized command structures, arrived outfitted in helmets and matching uniforms and deployed shields, batons, clubs, and flagpoles as weapons in skirmishes with counter protesters. Meanwhile, private militia groups—many dressed in camouflage fatigues, tactical vests, helmets, and combat boots, and most bearing assault rifles—stood guard as self designated protectors of the protesters and counter-protesters.¹⁸⁷ The heavily armed presence and coordinated paramilitary activities of these groups not only increased the prevalence of violence at the rally but also made it more dangerous for state and local law enforcement to maintain public safety. Moreover, the attire and behavior of some of the self professed militia led to confusion as to who was lawfully authorized to keep the peace and give commands to the civilian population.

Constitutional and statutory provisions exist in every state to prohibit these kinds of private armies and paramilitary activity.¹⁸⁸ These laws fall into four categories.

State Constitutional Provisions

Forty-eight states have constitutional provisions requiring the subordination of the military to civil authorities. Virginia’s constitutional provision is representative: “in all cases the military should be under strict subordination to, and governed by, the civil power.”¹⁸⁹ When private armies organize into military-style units that are neither responsible to, nor under the command of, the civil power of the state authorities, they violate this constitutional command to the detriment of civil order.¹⁹⁰

Unauthorized-Private-Militia Statutes

Twenty-nine states have statutes that prohibit groups of people from organizing as private military units without the authorization of the state government. These statutes usually also prohibit such groups from “parading” or “drilling” in public with firearms. New York’s statute is representative: “No body of men other than the organized militia and the armed forces of the United States except such . . . organizations as may be formed under the provisions of this chapter, shall associate themselves together as a military company or other unit or parade in public with firearms in any city or town of this state.”¹⁹¹ When self-designated private militia organizations attend public rallies purportedly to keep the peace or protect the rights of protesters or counter- protesters, they likely violate this prohibition, particularly when bearing arms and wearing military-style uniforms.

Anti-Paramilitary-Activity Statutes

Twenty-five states have statutes that criminalize paramilitary activity. These laws make it illegal for individuals to teach others how to use firearms, explosives, or techniques capable of causing injury or death, or to assemble to train or practice with such firearms, explosives, or techniques, knowing or intending that these techniques will be used to further a civil disorder.¹⁹² “Civil disorder” generally is defined as a public disturbance involving acts of violence by two or more persons that causes an immediate danger of, or results in, damage or injury to persons or property.¹⁹³ This prohibition covers conduct similar to that witnessed at the Unite the Right rally, where organized groups used firearms and dangerous techniques (including using shields and sharpened flagpoles to form phalanxes) in the civil disorder that resulted in the event being declared an unlawful assembly.¹⁹⁴

False-Assumption Statutes

A number of states prohibit the false assumption of the uniform or duties of a peace officer or member of the military, including at least 14 states with statutes that may apply in the context of unauthorized private militia activity at public demonstrations.¹⁹⁵ For example, Arizona bars any person except service members and veterans from wearing “any part of the uniform of the national guard or the army, navy or air force of the United States, or a uniform so similar as to be easily mistaken therefor,”¹⁹⁶ and Virginia prohibits the false assumption of the “functions, powers, duties, and privileges” of a law enforcement or peace officer.¹⁹⁷ Private militias that wear uniforms highly similar to military uniforms and those who seek to “keep the peace” to the exclusion of authorized law enforcement may violate these prohibitions.¹⁹⁸

These prohibitions reinforce the fundamental tenet of civil society that the government must maintain a monopoly on the legitimate use of force for the protection of public safety.¹⁹⁹ The laws are consistent with the First Amendment, as they regulate conduct harmful to public safety—not speech or assembly for peaceable purposes—and with the Second Amendment right to bear arms, which does not protect private paramilitary activity.²⁰⁰

Anti-paramilitary laws may be enforced in a number of ways. Where private militias and groups engaging in paramilitary activity at public demonstrations violate a state’s relevant statutes, lawenforcement officials may pursue criminal charges.²⁰¹ State level officials may also seek to enforce their constitutional prerogative to ensure that all military activity remains under civil control. Localities and affected communities have utilized anti-paramilitary laws to obtain injunctive relief against imminent or repeated dangerous paramilitary activity.²⁰² Finally, such laws may be used proactively as a basis for lawful time, place, and manner restrictions designed to minimize violence at future rallies.²⁰³

Unlawful-Assembly Laws

Both at common law and under various state statutes, participating in an unlawful assembly is a criminal offense punishable as a misdemeanor. Although there is some variation among the statutes of different states, an unlawful assembly ordinarily involves an assembly of three or more persons²⁰⁴ who share a common intent “to do an unlawful act” or to do an “act in a violent, unlawful, and tumultuous manner to the terror and disturbance of others.”²⁰⁵ That is, a gathering may be deemed an unlawful assembly regardless of whether its object is unlawful if those participating in the assembly intend to achieve their ends in such a way “as to give firm and courageous persons in the neighborhood of such assembly ground to apprehend a breach of the peace in consequence of it.”²⁰⁶

Unlawful-assembly offenses are closely related to the common law and statutory crimes of riot and disturbing the peace: when participants in an unlawful assembly “take steps towards the performance of their purpose, it becomes a rout; and, if they put their design into actual execution, it is a riot.”²⁰⁷ Prohibitions on unlawful assemblies therefore seek to “stop trouble before it occurs”²⁰⁸ and to prevent riots—“to discourage assemblies which get ‘out of hand,’ which interfere with the public, and thus disturb the public peace and provoke the commission of other and more serious crimes.”²⁰⁹

Lawful demonstrations can become unlawful assemblies if the participants develop the intent to do an unlawful act or any act in a violent and unlawful manner during the course of the assembly.²¹⁰This intent must be shared among the participants; individual wrongdoing is not enough to transform a lawful assembly into an unlawful assembly.²¹¹ Even unlawful activity by some participants in a demonstration does not necessarily transform a “peaceful demonstration into a potentially disruptive one.”²¹² However, although the participants in an unlawful assembly must share a common intent, not every individual needs to have committed a violent or unlawful act to render the assembly as a whole unlawful. Rather, “a person can become a member of an unlawful assembly by not disassociating himself from the group assembled and by knowingly joining or remaining with the group assembled after it has become unlawful.”²¹³

Prohibitions on unlawful assemblies generally have been upheld as consistent with the First Amendment. The Supreme Court has repeatedly affirmed that the First Amendment does not bar government officials from restricting public demonstrations where “clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears.”²¹⁴ At the same time, however, “a state may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.”²¹⁵

Courts have concluded that the common-law history of unlawful-assembly offenses and the First Amendment’s rights of freedom of speech and assembly constrain the otherwise broad range of conduct that arguably could fall within the definition of unlawful assembly, such that the statutes are neither vague nor overbroad.²¹⁶ In doing so, courts generally have read into the statutes a limitation that “protests or assemblies cannot be dispersed on the ground that they are unlawful unless they are violent or . . . pose a clear and present danger of imminent violence, or they are violating some other law in the process.”²¹⁷

Thus, in the context of public demonstrations, government officials must draw a distinction between loud but orderly protest activity and conduct that threatens public safety due to imminent violence, destruction or property, or other unlawful acts. Neither loud but generally peaceful protest activities, such as chanting, singing, or praying on a public sidewalk, nor demonstrations in support of unpopular causes likely to offend onlookers can support a conclusion that an assembly is unlawful.²¹⁸ By contrast, where a once-peaceful gathering grows hostile and violent and threatens the safety of others or their property, an official would be justified in concluding that the assembly has become an unlawful one.²¹⁹ The key question is whether those assembled have shown a “common intent to resort to force or violence,” as demonstrated “by an actual resort to violence or by acts giving probable cause to believe that such violence is imminent.”²²⁰

When statutes grant government officials the authority to order an unlawful assembly to disperse, a failure to disperse following such an order is generally a separate misdemeanor offense.²²¹ Officials may declare an unlawful assembly only if they have probable cause to believe that the current gathering has become unlawful. It is not enough that there was violence on another day, in similar circumstances, or by others responding to the same issue,²²² although a pattern of escalating violence by the same group may be a relevant consideration.²²³ Moreover, a decision to declare an unlawful assembly should not be based on the content of the assembly’s message.²²⁴

An officer dispersing an unlawful assembly should ensure that the order to disperse is loud enough to be “reasonably likely to have reached all of the crowd” and should, absent a threat of imminent harm, provide time to comply with the order before arresting those who remain.²²⁵ The language an official uses to order dispersal need only reasonably convey to an observer that she is being commanded to depart; it need not specify the extent of the area that must be vacated nor the time by which it must be cleared.²²⁶ In enforcing a lawful dispersal order, officials need not allow nonviolent demonstrators to remain; even those who merely choose not to disperse and dissociate themselves from the unlawful assembly may be subject to arrest.²²⁷

Anti-Mask Laws and Ordinances

Some states and localities have enacted statutes and ordinances that forbid the wearing of masks and other disguises intended to conceal one’s identity while on public property. In the extenuating circumstances related to COVID-19, mask-wearing is recommended as a public health measure and required in many states, and some states and localities have expressly suspended enforcement of their existing anti-mask laws.²²⁸ This Section addresses anti-mask laws in ordinary times; it does not in any way cast doubt on recommended or required mask-wearing in the context of a grave public health emergency.

Many anti-mask laws were passed in response to outbreaks of violence by masked individuals, such as attacks perpetrated by the Ku Klux Klan against members of minority communities into the mid 20th century.²²⁹ Given this history of intimidation and harassment, masks often are perceived as threatening, especially in combination with the presence of weapons, and they can strike fear in members of the public.²³⁰ More generally, anti-mask laws recognize that mask-wearing allows individuals to commit criminal acts anonymously, thereby threatening public safety and the public peace and hindering the identification and apprehension of perpetrators of crime and violence.²³¹ After the pandemic has subsided, jurisdictions may want to consider enacting and enforcing generally applicable anti-mask statutes, even as they remain aware that such statutes are likely to face opposition from groups seeking to protest anonymously.

Anti-mask statutes generally can be grouped into two categories. Statutes in the first category, “general anti-mask statutes,” criminalize wearing a mask in public to conceal one’s identity. Many such laws also include exceptions for wearing masks in contexts where a threat to public safety is considered less likely. For example, Georgia bans wearing “a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer” while “upon any public way or public property or upon the private property of another without” permission.²³² The statute exempts from its prohibition wearing “holiday costume[s]”; donning a mask for physical safety while on the job or for a sporting activity; using a mask “in a theatrical production,” Mardi gras celebration, or masquerade ball; and wearing a gas mask in an emergency or emergency drill.²³³

Statutes in the second category, “criminal anti-mask statutes,” ban wearing a mask only when it is worn either with a specified intent or while engaged in the commission of a crime. For example, Washington, D.C., criminalizes “wearing any mask, hood, or device . . . to conceal the identity of the wearer” when done with certain specified intents, including an “intent to deprive any person . . . of equal protection of the law,” “intent to intimidate, threaten, abuse, or harass any other person,” or “intent to cause another person to fear for his or her personal safety”; or “[w]hile engaged in conduct prohibited by civil or criminal law, with the intent of avoiding identification.”²³⁴

Individuals prosecuted under anti-mask statutes and groups seeking to wear masks at public demonstrations—including members of Ku Klux Klan affiliates and students protesting against the government of Iran in the 1970s—have raised First Amendment challenges to the enforcement of anti-mask statutes and ordinances. Although some courts have struck down anti-mask statutes as unconstitutional, the Second Circuit, Seventh Circuit, the Georgia and West Virginia supreme courts, and a Virginia court of appeals have upheld their constitutionality. Challengers primarily have raised four arguments.

Symbolic Speech

Protesters have argued that mask-wearing is a type of conduct that qualifies as symbolic speech, requiring the application of heightened scrutiny under the First Amendment. Courts generally have rejected this argument in the context of Ku Klux Klan–affiliated groups, concluding that mask wearing is not protected speech because the incremental speech value of wearing the mask beyond that of wearing the Klan’s traditional robe and hood without the mask is negligible.²³⁵ However, a court held that mask-wearing by protesters of the Iranian government was expressive conduct where the masks had become symbols “of opposition to a regime which is of such a character that its detractors believe they must disguise their identity to protect themselves.”²³⁶ To the extent mask-wearing qualifies as symbolic speech, the government must satisfy the test set forth in United States v. O’Brien: it must establish that the prohibition furthers an important governmental interest unrelated to the suppression of speech; that there is a sufficient nexus between the prohibition and the governmental interest it supports; and that the incidental restriction on speech is no greater than necessary to the furtherance of that interest.²³⁷ Courts have reached different conclusions as to how this test applies depending on the context of the challengers’ conduct.²³⁸

Anonymous Speech

Protesters have argued that they have a First Amendment right to protest anonymously because of the risk that they or their families will be retaliated against for their views. The First Amendment protects individuals’ right to engage in anonymous speech where the government’s interests in requiring disclosure of one’s identity do not justify the chilling effect disclosure would impose on the rights of speech and association.²³⁹ However, the extent to which the right to anonymity extends to public demonstrations is unsettled, and courts disagree as to whether prohibiting masked protests implicates the right to anonymity at all.²⁴⁰ Where courts have found that prohibitions on wearing masks implicate a protected First Amendment right, thereby requiring heightened scrutiny, they generally also have concluded that the government failed to demonstrate that the law was appropriately tailored to meet its interests.²⁴¹

Overbreadth

Defendants charged with violating anti-mask statutes have argued that the statutes are overbroad— i.e., that they prohibit a substantial amount of constitutionally protected activity. General anti-mask statutes are more susceptible to overbreadth challenges because the only intent required ordinarily is the intent to conceal one’s identity, thereby allowing application in a broader array of circumstances.²⁴² In order to avoid such an overbreadth problem, in State v. Miller, the Georgia Supreme Court construed Georgia’s general anti-mask statute to apply only “when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.”²⁴³ Criminal anti-mask statutes, by contrast, are less susceptible to an overbreadth challenge because they are more focused on the connection between mask wearing and constitutionally unprotected conduct.²⁴⁴

Content-Based Restriction

Where a general anti-mask statute exempts from its prohibition masks worn for specific purposes—such as Halloween costumes or masquerade balls—challengers have argued that the statute operates as a content-based restriction on speech (or as a violation of the Equal Protection Clause under a content-based theory) and therefore should be subject to strict scrutiny. This type of challenge has only rarely been successful.²⁴⁵ Where courts conclude that an anti-mask statute only minimally affects speech rights, they generally defer to legislative judgments in determining what categories to exempt from prohibition.²⁴⁶ It remains to be seen, however, whether exemptions from mask-wearing prohibitions will be treated as content-based following the Supreme Court’s decision in Reed v. Town of Gilbert, ²⁴⁷ which articulated a seemingly rigid framework for determining whether speech restrictions are content-neutral or content-based.

Even if a court concludes that mask-wearing implicates demonstrators’ First Amendment rights, that is not the end of the inquiry.²⁴⁸ The government may still prevail if it establishes that its substantial interests furthered by the statute justify the impingement on individuals’ First Amendment rights. Courts generally have found the interests furthered by anti-mask statutes—protecting public safety, identifying criminals, and guarding against violence and intimidation—to be substantial and even compelling interests.²⁴⁹ Where governments defending their anti-mask ordinances have lost challenges to their statutes, it has often been because of a lack of evidence demonstrating the nexus between public-safety goals and the protest activity at issue.²⁵⁰ Jurisdictions are on safer ground where they can demonstrate specific, non-speculative public-safety justifications for their anti-mask regulations.²⁵¹ Finally, even when enactment of an anti-mask prohibition was motivated by the behavior of a single group, like the Ku Klux Klan, courts have not found that fact relevant to their First Amendment analysis.²⁵² Still, it is essential that anti-mask laws—like any other type of speech restriction—serve broader governmental ends, rather than simply targeting individual groups based on their messages.

Public-Nuisance Laws

Public nuisance is a common law tort and a crime in every state. “The concept of common law public nuisance . . . elude[s] precise definition.”²⁵³ At the general level, a public nuisance is an “unreasonable interference with a right common to the general public.”²⁵⁴ Rights “common to the general public” are those related to the public health, safety, peace, comfort, convenience, and morals, rather than individual rights.²⁵⁵ Moreover, the “unreasonable interference” involved in a public nuisance—i.e., the conduct or condition that is deemed to be a nuisance—generally must affect “the interests of the public generally, as distinguished from those of a particular class,” even if that class involves a large number of people.²⁵⁶ Finally, the effect on the public right—i.e., the “annoyance, discomfort, inconvenience, or injury to the public”—must be “substantial.”²⁵⁷ For example, an unreasonable obstruction that blocks access to a public street for a considerable period of time is considered a public nuisance.²⁵⁸

Generally, in determining whether conduct or a condition so unreasonably interferes with a public right to be considered a public nuisance, courts assess three factors: (a) “[w]hether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience,” (b) “whether the conduct is proscribed by a statute, ordinance or administrative regulation,” or (c) “whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.”²⁵⁹ The unreasonableness of the interference may be shown if any one of the three factors is met, though these factors are not exclusive.²⁶⁰

States have broad authority to prohibit conduct or the creation of a harmful condition as a public nuisance.²⁶¹ Many states have a general public-nuisance misdemeanor offense.²⁶² These statutes generally have been interpreted to include interferences with public rights that were considered public nuisances at the common law.²⁶³ States also have specifically criminalized certain activities as public nuisances per se because they interfere with public rights.²⁶⁴ Moreover, many states have delegated to municipalities and administrative agencies the ability to define public nuisances by ordinance or regulation.²⁶⁵ The enumeration of specific public-nuisance offenses does not preclude common-law remedies for other, non-enumerated conduct that unreasonably interferes with a right common to the public.

Public nuisances may be regulated in three main ways: (1) criminal prosecution; (2) civil suits for abatement, such as through injunctive relief; and (3) civil suits for damages.²⁶⁶ States generally have authority to sue for abatement of public nuisances,²⁶⁷ and many states also have shared that authority with municipalities by statute.²⁶⁸ Private individuals also may be able to sue for abatement or damages, but only to the extent that they have suffered damages different in kind from those suffered by the public at large.²⁶⁹ Where injunctive relief is sought, the ordinary standards for an injunction apply.²⁷⁰ Finally, where a continuing nuisance exists, a plaintiff may seek both damages and an injunction.²⁷¹

Municipalities may seek to enjoin actually harmful conduct as a public nuisance even if that conduct occurs in the course of a public demonstration. For example, in Thomas v. City of Danville, the Virginia Supreme Court upheld an injunction where ongoing protests had, over a period of multiple months, repeatedly turned violent and blocked public streets and buildings.²⁷² In New York State National Organization for Women v. Terry, the U.S. Court of Appeals for the Second Circuit upheld an injunction obtained by New York City under a public-nuisance theory where anti-abortion protesters engaged in “en masse demonstrations” in order to block access to health clinics, thereby impeding both the public’s right to obtain medical services and the health and safety of those who wanted to use the public streets.²⁷³ And municipalities may, within reasonable limits, enact public-nuisance ordinances to control the volume of amplified sound.²⁷⁴

However, like any other government action, public nuisance prohibitions and injunctions must comport with constitutional limits, including First Amendment and due process protections. For example, in Near v. Minnesota ex rel. Olson, the Supreme Court held that the First Amendment precluded Minnesota from imposing a prior restraint on what a newspaper could publish in the name of abating a public nuisance.²⁷⁵ And in Thomas v. City of Danville, while upholding some of the provisions of an injunction against riotous conduct, the Virginia Supreme Court nonetheless struck down other terms of the injunction because the conduct prohibited by those terms was protected by the First Amendment.²⁷⁶

State Firearms-Regulation Preemption Laws

In many states, firearms-regulation preemption statutes bar local jurisdictions from regulating firearms in a manner that differs from state law, even if the regulation fully complies with the Second Amendment. The specifics of such laws vary, but they often prohibit localities from regulating most aspects of firearms manufacturing, ownership, possession, and sale, and could pose an obstacle (in addition to the constitutional obstacles discussed in Section I.B) to including restrictions on carrying firearms as a condition of public-event permits.²⁷⁷ Some such laws, however, contain exceptions allowing localities to regulate certain aspects of gun safety, such as the recent amendment to Virginia’s preemption law, which preserves the ability of localities to restrict possession of firearms in government buildings and public spaces owned by the locality, such as parks.²⁷⁸ Other states, including Connecticut, Hawaii, Massachusetts, New Jersey, and New York, have no express firearms-regulation preemption law. Even those states, however, may follow general preemption principles that recognize the supremacy of state over local law, which could affect how localities can regulate firearms.

Localities may want to include firearms restrictions in public-events permits, but, because the specifics of each state law vary, localities should check the law in their state before doing so.²⁷⁹ Note also that some state firearms-regulation preemption laws impose fines, criminal penalties, or removal from office for local officials who violate them.²⁸⁰ Depending on the wording of the specific preemption statute in any given state, there may be an argument available that the statute does not apply to reasonable time, place, and manner restrictions on gun possession during public events where there are well-founded concerns about protecting public safety.