The word “draw” is in the CA penal code. Drawing the weapon in a threatening manner is brandishing, in my state at least. It would certainly be sufficient justification for police to defend themselves.
nevermind
Drawing the weapon in a rude, angry, or threatening manner violates CA law. But neither drawing nor holding a drawn gun qualifies on its own.
Those being situations where firing the rifle at legitimate targets would be expected. In a peaceable assembly, not so much.
Look, I’m glad I learned about indexing. Knowledge is power! But the phrasing here implies that it’s either finger-indexed or finger-on-the-trigger. I see no reason why at a peaceable assembly the gun owner’s hand needs to be near the trigger at all. Keep the gun scabbarded or slung, or at most hold it with the hand well away from the trigger.
If brandishment laws don’t cover this sort of situation, it’s high time to rewrite them.
That might have been me!
I think that analysis is right, at least regarding threats targeted at the person who controls the condition (which was not present on these facts). There’s a separate open question about whether the threat doctrine requires immediacy at all. If it doesn’t, then it doesn’t matter how immediately the condition would be satisfied or unsatisfied either.
I think the contingency piece matters more for incitement and solicitation.
You’ll probably succeed in that effort in places like NY/ MD / CA (if someone hasn’t already beaten you to the punch). You’re less likely to find the votes in UT/ AZ / ID. VA is probably in the middle somewhere, perhaps closer to the RKBA side of things. Good luck.
I live in Virginia and brandishing seems very “in the eye of the beholder” (the beholder in this case being a cop). It is clear that merely exposing your gun can be brandishing. Touching your gun can be brandishing. Holding your gun in the ready position can very well be brandishing.
The lack of charges may arise from three factors. Cops just aren’t as threatened by white dudes brandishing guns (I wonder if they would have felt the same way about Black Panthers brandishing guns as they did about white Nazis brandishing guns). Cops felt they couldn’t confront all those guys with guns. Or there were enough cops who were somewhat sympathetic to the Nazi protesters that they were going to interpret the facts in the light most favorable to the Nazis.
If you crouched and held your gun in the ready position with their fingers resting on the trigger guard, I think a reasonable person could fear for their safety.
I don’t believe these Antifa protesters with long guns got arrested either. Does that alter your analysis about “cops who were somewhat sympathetic to the Nazi protesters” at all?
ETA: BTW, thanks for the personal insights in your first paragraph.
Neither one of us can figure it out, and neither can the courts. That’s why I think that while Brandenburg announced a good First Amendment principle, the open questions it left caused far more problems than it solved.
Under Brandenburg, a person can advocate for the violent overthrow of the government because his speech is political and there is no danger of imminent lawless action. Fine, I agree.
Conversely, if a person threatened to shoot his state legislator standing in front of him, that would not be protected because it is imminent.
However, it would seem under a plain reading of Brandenburg, that I could advocating overthrowing the government tomorrow afternoon at 2pm, and such speech would be protected as my threat is not imminent.
You might argue that would be solicitation, but why was the conduct in Brandenburg not equally solicitation? I would file that under “a bunch of rednecks are spewing nonsense that they will never accomplish so we will let it go.” That’s not a good basis for law.
The ACLU seems to be moving in exactly the direction that my OP was asking about. They reference Volokh for support for their position, although I am unable to find the specific cite.
It does seem as though gunas and other weapons are completel banned from the boston rallies today.
Does anyone think that this violates 2A?
Boston already doesn’t allow carry of any kind, so this isn’t a new restriction. I do think general carry bans are violative of the 2nd, but this prohibition here is status quo.