What criminal statutes apply if a protester openly carries a firearm and uses it to intimidate or brandish?
Executive summary
A protester who openly carries a firearm and uses it to intimidate or brandish can face a range of criminal statutes at both federal and state levels, from local “brandishing” and menacing laws to more serious federal firearms offenses where a weapon is used in connection with another crime; the applicable charge depends on the conduct, intent, location, and applicable jurisdiction [1] [2] [3]. Courts have repeatedly held that the Second Amendment does not immunize threatening displays of weapons, so constitutional arguments rarely block prosecution of brandishing or menacing statutes [2].
1. Federal weapons statutes that escalate brandishing into a felonious offense
Federal law treats certain uses of a firearm during a crime of violence or drug trafficking as separate, severe offenses: for example, 18 U.S.C. § 924(c) defines “brandishing” as a distinct form of “use” of a firearm and prescribes mandatory minimums—brandishing triggers a seven‑year statutory minimum, and discharging a firearm carries an even higher minimum—so if brandishing occurs in the commission of a federal offense, the penalties are substantial [3]. Separately, federal voter‑intimidation and related statutes can convert an intimidating display of firearms at civic events into federal offenses, and advocates and analysts have pointed to such federal options when protests intersect with elections or legislative processes [1].
2. State brandishing, pointing, and menacing statutes that cover protests
Every state criminal code contains mechanisms to criminalize using a gun to threaten or intimidate: seventeen states explicitly outlaw brandishing or displaying a firearm with intent to cause fear, ten states outlaw pointing a gun, and the remainder use assault, menacing, or threatening statutes to reach the same conduct—so an armed protester who displays a weapon “in a manner calculated to alarm” can be charged under these laws in many jurisdictions [2] [1]. Examples include Virginia’s statute making it unlawful to point, hold, or brandish a firearm in a way that reasonably induces fear [4] and Michigan guidance that publicly displaying a firearm with intent to induce fear can lead to prosecution under brandishing rules [5].
3. Assault, menacing, disorderly conduct, and other overlapping state charges
When a display rises to a threat or aimed conduct, prosecutors commonly charge related crimes such as assault with a deadly weapon, menacing, criminal threats, disorderly conduct, or deadly conduct—some jurisdictions treat aiming or pointing a gun as assault or aggravated assault, while others use broader menacing statutes to capture intimidation by a firearm [6] [7] [8] [9]. The practical effect is that the same act—waving, pointing, or aiming a gun at a crowd or an individual—can be prosecuted under multiple theories depending on statutory language, venue, aggravating facts (presence of minors, schools, or crowds), and prosecutor strategy [10] [11].
4. Penal consequences and variability by state
Penalties for brandishing range widely: some brandishing statutes are misdemeanors (punishable by days to months in jail) while other circumstances or locations—such as brandishing near schools or using the weapon in a way that elevates fear—can produce felony exposure and multi‑year sentences; California’s Penal Code §417 commonly carries misdemeanor exposure but can be charged as a felony with heavier penalties and mandatory minimums in certain contexts [12] [13]. Legal commentary and defense firms stress that local statutes, the specific facts of display, and the defendant’s criminal history are determinative of whether a charge becomes a misdemeanor or felony [11] [9].
5. Defenses, constitutional claims, and practical enforcement dynamics
Although some armed demonstrators invoke the Second Amendment or self‑defense doctrines, courts have repeatedly rejected broad claims that the Second Amendment protects threatening displays intended to alarm the public, and prosecutors and courts evaluate claims of lawful possession or self‑defense against the intent and circumstances of the display [2] [1]. Practical enforcement also reflects political and public safety priorities—local authorities may weigh crowd control, the risk of escalation, and public alarm when deciding whether to arrest, cite, or refer cases for prosecution—facts highlighted in reporting on Capitol and state capitol demonstrations [1] [5].
6. What reporters and advocates disagree on (and what reporting leaves unanswered)
Advocacy groups focused on civil liberties emphasize lawful open carry and burdens on peaceful protesters; public‑safety advocates and some prosecutors emphasize the chilling effect of weaponized presence at civic spaces and point to statutes that criminalize intimidation [2] [1]. The sources document statutory tools and prosecutions but do not provide a comprehensive map of every state’s penalties or how often prosecutors actually pursue federal versus state charges in protest contexts, so precise outcomes turn on local law and prosecutorial judgment [1] [9].