Recently, some open carry activists descended on a Chipotle in Texas, wearing semiautomatic rifles on slings as they ordered their burritos. This made some patrons of the restaurant quite upset, and many Chipotle fans wrote to the company, which swiftly issued a statement asking its patrons not to do that. Its statement also suggests, in the most roundabout, corporate-speak way possible, that no guns are welcome in their stores anymore:
Historically, we felt it enough to simply comply with local laws regarding the open or concealed carrying of firearms, because we believe that it is not fair to put our team members in the uncomfortable position of asking that customers refrain from bringing guns into our restaurants.
However, because the display of firearms in our restaurants has now created an environment that is potentially intimidating or uncomfortable for many of our customers, we think it is time to make this request.
The open carry movement is interesting, because it actually has history on its side. In the 19th century, state courts looked somewhat skeptically on concealed carry, because it was considered the practice of criminals; gentlemen let you know they were armed by carrying their weapons openly. And as we saw recently, the historical scope of the right to bear arms is important to the Second Amendment analysis.
But, on the other hand, legal and social presumptions change. Guns become more concealable. The handgun rises in prominence; the rifle wanes in popularity while also becoming more deadly. The idea of “gentlemanliness” becomes less important. True militia membership wanes. Police forces become more formalized. Perhaps most importantly, the bulk of the population moves from a rural setting to an urban one. For all these reasons, seeing civilians carrying guns openly becomes a less common, and thus far more unsettling, sight.
Consider this problem from Kaplan’s bar review course:
So why is this justifiable homicide? The answer is simple—the homeowner saw an unidentified man with a drawn weapon approaching him. Of course, context matters somewhat — the man was just burgled. Fair enough. But if you believe the more aggressive open carry advocates, then all the homeowner really saw was a man walking toward him exercising his constitutional rights.
Nor does the fact that the off-duty cop had the gun in his hand really matter that much. After all, at least one of the open-carriers in the Chipotle also had his hand on the pistol grip and finger alongside the trigger guard in a version of the “low ready”:
And, for example, what else are you going to do with shotguns, if not carry them in your hand?
So carrying your gun around in your hand probably has to be okay, vis-a-vis open carry.
Thus the primary facts from the hypo seem to be that the homeowner (1) was the victim of a crime (though not, apparently, too shaken up by it, since he chased after the burglars), and (2) saw someone approaching him carrying a gun. And was alarmed. Because it’s alarming. It’s alarming to see someone coming with a gun in his hand, and one might rightly feel fear for one’s life.
89% of law students understood that right away.
Some of this is context-dependent, naturally, and seeing soldiers or hunters openly carrying weapons in their appropriate realms is not alarming at all. There are plenty of places where open carry probably makes sense. But in an urban setting, at the Chipotle or the Sonic or the Starbucks, walking into the place with a gun in your hand is not just a neutral action; it’s a fairly provocative one. Everyone understands this.
Which means that the people taking this action are doing it, with deliberation, to upset and intimidate people. Which is reprehensible. And when someone challenges them on it, they often take the intimidation to the next level. Mother Jones reports on a separate incident:
On Memorial Day this week, a former Marine in Texas named James got a couple calls from friends who’d spotted an unusual gathering in downtown Fort Worth . . . . An independent TV commercial producer who sometimes films live events, James headed downtown with his camera to get some footage.
What he saw there struck him as especially provocative. Not only had the open-carry activists come to a typically relaxed, family friendly part of town, they were displaying intimidating firearms just three days after a major gun massacre in Southern California . . . .
James, who asked that his last name not be used, knows his way around guns. He served for four years in the US Marines infantry, where he earned several awards for marksmanship. He is a gun owner, he told me, and a strong supporter of the Second Amendment and concealed-carry rights. But while carrying rifles publicly is legal in Texas, he felt that these guys—supporters of a movement that seeks to legalize the open carrying of handguns—were crossing a line.
“I’m all for responsible gun owners,” he says. “What I was taught was not to wear it around like a gold chain. What they’re doing is irresponsible. It intimidates the public, and people have just as much right to be comfortable in their public environment as these guys have a right to own their firearms.”
Suddenly he was surrounded by about a half-dozen armed men. They started badgering him with questions and accusing him of being anti-American. “I said, ‘Are you kidding me? I served in the military.’ They were trying to intimidate me, and when I didn’t cower that upset them,” he said. But he was starting to feel nervous and decided to disengage and walk away.
In a video obtained by Mother Jones that was posted online later that day by one of the activists, the group can be seen pursuing and harassing James through downtown Fort Worth. “I’m following this guy around,” declares one of them, setting off after him with his weapon slung across his back. He and others stay right behind James for several city blocks, following him through traffic and taunting him along the way. James grows more agitated and tells them off, calling them assholes and bullies.
“We’re being polite, you’re calling people names,” one of the gun activists pursuing him says.
“You’re not being polite out here with assault rifles the weekend after people lost their children,” James retorts, before again trying to walk away.
The harassment continues down the street. “Are you gonna cry?” one says. “Sounds like you’re about to cry . . . .”
Eventually they follow him to a parking lot (where, in the background, there just so happens to be a Chipotle). As James gets into his vehicle, the gun activists zoom in on his company’s name and contact info appearing on the side of his truck, as well as his license plate, vowing to post it all online.
After the video went up on YouTube and Facebook, James pushed back in the comments sections, only to be met with increasing hostility.
“That guy obviously thinks he’s a badass talking shit to armed citizens,” one gun activist said. “When [the shit hits the fan] I’ll be happy to smash assholes like him.”
When one of the guys who’d followed him suggested posting the video to multiple sites, another said they should “put really gay background music to it.”
“He wasn’t Marine Corps infantry,” declared another. “Or he got out due to ‘don’t ask don’t tell.’ What a fruit.”
“Who here wants to help ruin him?” said another . . . .
James faced similar treatment this week, he told me, with harassers saying he was a “fucking faggot” and “this guy needs his jaw broken.”
The aggressive policing of masculinity really gives away the game, of course; these are men who desperately need to prove their manhood—so much so that when someone challenges them for their aggressive, intimidating behavior, they feel compelled to feminize him. The enemy is weakness; the enemy is vulnerability; the enemy is femininity-as-they-understand-it. So if someone challenges your cramped, insecure masculinity—especially if that person displays signifiers of actual strength, like being a Marine, or not being intimidated—then, of course, the thing to do is verbally transform him into the hated weak feminine. Hence “fruit” and “faggot” and ominous homo-aggressive calls to “ruin him.”
The recording and dissemination of James’s personal identifying information, is, naturally, part of the same process. It mirrors not only attempts to harass and intimidate women online generally, but is part of a pattern of aggressive stalking of female activists recently associated with the open carry movement:
Longdon is no stranger to such attacks. Last May in her hometown of Phoenix, she helped coordinate a gun buyback program with local police over three weekends. On the first Saturday, a group of men assembled across the street from the church parking lot where Longdon was set up . . . .
Some of them approached Longdon. “You know what was wrong with your shooting?” one said. “They didn’t aim better.” Another man came up, looked Longdon up and down and said, “I know who you are.” Then he recited her home address. . . . .
After a fundraiser one night during the program, Longdon returned home around 10 p.m., parked her ramp-equipped van and began unloading herself. As she wheeled up to her house, a man stepped out of the shadows. He was dressed in black and had a rifle, “like something out of a commando movie,” Longdon told me. He took aim at her and pulled the trigger. Longdon was hit with a stream of water. “Don’t you wish you had a gun now, bitch?” he scoffed before taking off.
(Side note: I’m sure that scene seemed great to that guy when he worked it out in his head, but I’m not sure the logic is sound. Surely the least plausible armed self-defense scenario is self-defense against a planned ambush. If the attacker had been a real murderer, what good would it have done her to have had a gun, since he had clearly lain in wait and hidden in the darkness to gain the element of surprise?)
(Side note 2: since I am studying for the bar exam, I feel compelled to point out that that man in that last story is probably, at a minimum, both guilty of the crime of assault and liable for the tort of the same name, which is defined as “creating apprehension of an imminent harmful or offensive contact with a person.” He might also be guilty of/liable for battery, which, again, can be both a crime and a tort. The details would depend on the jurisdiction, naturally.)
The intimidation tactics, of course, are intended to silence these folks’ critics; to scare them into acquiescing to outrageous and provocative behavior. But why? What lies behind it? As I said, their actions and words tend to give away the game: these are men who hope to be the largest presence in the room, because they are dreadfully afraid. They are afraid of being hurt—who isn’t??—and the best thing they can think of to do is to present a large, belligerent, seemingly powerful, masculine face to the world, in the hope that everyone else will back down. Because, in their worldview, if other people aren’t backing down, they’re stepping up. And that is scary.
One more quote, from an open-carrier turned away from a Chili’s, that is simultaneously an obvious put-on and a sort of Freudian revelation of someone’s fear-based worldview:
Though probably few if any patrons regularly worry about their personal safety as they order Bacon Ranch Quesadillas or double cheeseburgers and shakes, gun activists in both videos comment about the apparent danger of not allowing open carrying on the premises. One says he told his daughter, “It’s not safe to be here—we gotta go,” while another comments, “This Chili’s is no longer the safest Chili’s to eat at.”
The story about the harassment of the Marine-journalist ends on a mildly positive note:
After multiple rejections from corporate restaurants and a wave of negative publicity, several Texas open-carry groups put out a joint statement last week asking their supporters to dial back the provocative tactics. Some hardcore followers balked at that, but now even some rank and file gun activists have expressed doubt in online comments about this latest incident. “Following him makes you the bad guy and could be considered intimidation,” one said. A member of Open Carry Texas—who himself participated in that group’s intimidation tactics against women—also disapproved of the footage, or at least of its public airing. “Nothing about this video benefits our movement,” he said.
I hope that is a sign that open carry orgs are letting the vocal public criticism of their methods sink in. On the other hand, these comments could also be read as being about mere tactics rather than principles. I hope not. There really is a bigger principle at stake here—those who choose to carry, because they are voluntarily taking up the tools of deadly force, must take on as well a higher level of responsibility to their communities. Part of that responsibility includes a clear commitment to non-intimidation; weapons are yours for self-defense, not to prop up your insecure masculinity.