How have courts ruled on municipal protest gun bans when state preemption and First/Second Amendment claims collide?
Executive summary
When municipal bans on guns at protests collide with state preemption statutes and constitutional claims, courts have split along two axes: statutory preemption is often dispositive—if a state has expressly occupied the field, local bans are invalidated by state courts; and constitutional challenges under the Second and First Amendments have become more potent since Bruen but generally do not convert ordinary firearm possession into protected expressive conduct, leaving many municipal tactics vulnerable to both statutory and constitutional attack [1] [2] [3].
1. Statutory preemption frequently wins: state law can strip cities of power
State-level preemption regimes have emerged as the most powerful legal constraint on municipal protest gun bans: scholars and practitioners document that where a state has declared exclusive authority over firearms regulation, local ordinances are routinely invalidated or foreclosed, as recent litigation in Pennsylvania demonstrates where the state supreme court upheld laws barring cities from adopting their own gun safety measures [2] [1].
2. Bruen changed the constitutional landscape—and courts are applying the historical-tradition test
The Supreme Court’s post-Heller/Bruen jurisprudence requires courts to evaluate Second Amendment challenges by asking whether a modern restriction is consistent with the Nation’s historical tradition of firearm regulation, a test that has made plaintiffs’ challenges both more doctrinally structured and, in some circuits, more successful—forcing lower courts to treat municipal bans with scrutiny grounded in historical analogues rather than multi-factor balancing [4] [5].
3. First Amendment arguments for armed protestors rarely persuade courts
Attempts to recast open carry or armed presence at demonstrations as First Amendment–protected expressive conduct have generally fallen flat: authoritative scholarship and case law note that mere possession of a firearm typically lacks the particularized intent and likelihood of communicative understanding required for conduct to receive expressive-speech protection, and no published decision to date has accepted a standalone First Amendment right to bring guns as political speech to public demonstrations [3].
4. When constitutional claims succeed, it is often because preemption is absent or the ban lacks historical footing
Where municipal rules survive, it is usually because the state law leaves room for local regulation or because defendants cannot meet Bruen’s historical-tradition test; the Ninth Circuit’s recent ruling striking down California’s urban open-carry rule illustrates how appellate courts will invalidate modern prohibitions that cannot be shown to track historical analogues—yet that same decision depended on federal constitutional analysis, not municipal policy preferences [6] [7].
5. Practical takeaway—law, policy and hidden agendas collide on the courthouse steps
The outcome of any municipal protest-gun ban dispute hinges less on slogans about “public safety” or “rights” and more on technical legal realities: the precise language of state preemption statutes, the presence (or absence) of enabling state law permitting local restrictions, and the litigants’ ability to satisfy Bruen’s historical test; additionally, actors on both sides often pursue strategic litigation to reshape precedent—state preemption advocates and national gun-rights groups push for uniformity (and broader carrying rights), while local officials and gun-safety advocates frame preemption as a political project that ties municipal hands [2] [8] [1].