The Second Amendment affords people the right to possess weapons such as firearms. While there are no cities or states that can infringe on this right (some have tried), there are some limitations when it comes to the interpretation of the freedoms it provides…
For instance, the right to carry is limited in many cases regarding criminals. The amendment, as interpreted today, is meant only for law-abiding citizens, which has opened the door for criminal background checks and issues for those with certain mental health issues.
The right is also limited in that it does not allow for weapons that are “dangerous and unusual,” following a Supreme Court case in 2008 that has been described by some as excessive regulation.
While states or cities have been ruled against when attempting to curb the Second Amendment, there are limitations currently enforced making it illegal to be armed (especially with a concealed weapon) at certain locations like government buildings, schools, and airports. The laws determining specific contextual restrictions like these vary greatly from state to state and jurisdiction to jurisdiction.
The first two amendments intersect greatly when it comes to carrying a gun during a mass gathering or protest, and this law also varies among states. Sixteen states have deemed it unlawful to be armed while attending protests or demonstrations.
In other states, both amendments protect self-armament at mass public gatherings and protests. Others have argued that by carrying weapons during a protest, it impedes the First Amendment protections of other, unarmed protesters due to fear.
Note how the New York Post (Lean Right) highlighted support for Kyle Rittenhouse and criticism of Alex Pretti, while CNN (Lean Left) did the opposite, framing Rittenhouse as reckless but Pretti as wholesome.
When Rittenhouse carried a rifle during a 2020 night of unrest in Wisconsin and killed two people who attacked him, some celebrated the Second Amendment's protection of self-armament. Those same voices were more skeptical of the idea that Pretti was responsibly exercising his constitutional right to bear arms. This may be because they believe Pretti was interfering with law enforcement operations while armed, while Rittenhouse was attacked while armed.
When incidents like the killings of Good and Pretti happen at the hands of federal agents, many voices mourn them and criticize government oppression. But those same voices are quieter when US citizens are killed by violent unauthorized immigrants – the criminals who federal agents are purportedly working to expel.
Of course, the situations are different: Pretti was killed and didn't use his weapon; Rittenhouse did, and survived. Pretti was involved in an altercation with federal agents; Rittenhouse was involved in an altercation with private citizens.
Most people would agree that both the Pretti and Rittenhouse incidents, in a better-functioning society, wouldn’t happen. How can we find that common ground and make some lasting progress, instead of trying to play “gotcha”?
4. How have First and Second Amendment defenders replied?
While pro-2A groups tend to lean more conservative, pro-1A groups are more of a mix. But regardless of those tilts, most spoke out on the need to protect the first two amendments following the Pretti shooting.
The national American Civil Liberties Union (ACLU) and ACLU of Minnesota said they “strongly condemn this killing and demand these violent and dangerous federal agents immediately withdraw from Minnesota — and other communities across the country.”
A statement from the Minnesota Gun Owners Caucus read, "There is no prohibition on a permit holder carrying a firearm, loaded with multiple magazines at a protest or rally in Minnesota."
Bill Essayli, the U.S. attorney for the Central District of California, said on social media, "If you approach law enforcement with a gun, there is a high likelihood they will be legally justified in shooting you. Don't do it!"
The National Rifle Association responded to Essayli, calling his statement “dangerous and wrong,” and urging people to await a full probe instead of “making generalizations and demonizing law-abiding citizens.”
Gun Owners of America also weighed in, saying, “Peaceful protests while armed isn’t radical–it’s American.”
5. What’s next?
“If absolute certainty about the shooting of Alex Pretti is unattainable, how should a society decide when it knows enough to assign responsibility, enact consequences, and claim justice without confusing moral judgment, legal proof, and emotional truth?” - Submitted by user Andrew, Ohio, Center bias
“Prosecutors, defense and civil attorneys agree it’s a legal situation unlike anything the state has ever seen,” according to the Minneapolis Star Tribune (Lean Left). And there are many moving parts:
Local authorities
- Minnesota Bureau of Criminal Apprehension (BCA) Superintendent Drew Evans initially said that while his agency has a history of working with the FBI, DHS has now taken over the case.
- The medical examiner for Hennepin County, Minnesota determined that Pretti's killing was a "homicide" caused by "multiple gunshot wounds."
Pretti’s family
- Pretti’s parents hired a former federal prosecutor who helped convict Derek Chauvin, the police officer who kneeled on George Floyd’s neck, of murder.
- A statement from Pretti’s family’s attorney read, "Justice and accountability requires a thorough and impartial investigation to establish the facts. A truly joint state and federal investigation would be a welcome development." This has yet to materialize.
Federal authorities
- The two Border Patrol agents involved in the shooting, Jesus Ochoa and Raymundo Gutierrez, have been on leave since the incident occurred on Jan. 24.
- Administrative leave is standard procedure following a government-involved fatal shooting while the Office of Professional Responsibility investigates. “
- A federal judge ordered federal investigators on the day of the incident to preserve evidence it collects,” per The Hill (Center).
- The Justice Department opened a civil rights investigation into the shooting, according to Deputy Attorney General Todd Blanche.
Whether the agents will be penalized further, or whether Pretti’s family may receive some kind of settlement, remains to be seen.
Read more about underreported facts of the case on our blog.
AllStances: Does the First Amendment protect Alex Pretti's actions prior to his death?
1) Pretti’s observational filming was protected speech
Recording law enforcement officers in public functions is a form of expression protected by the First Amendment because it contributes to public debate and accountability. Federal appellate decisions recognize this right, e.g., filming police performing duties “acts as a watchdog of government activity.”
2) Core protests and assembly activity are protected – but may have limits
Protest activities can be subject to neutral time, place, and manner restrictions — restrictions that are not content-based limits but safety rules.
3) Carrying a firearm doesn’t inherently remove First Amendment protection
Lawfully carrying a firearm at a protest does not automatically eliminate First Amendment protection for speech and assembly.
4) Pretti interfered with law enforcement activities, removing his First Amendment rights
The First Amendment does not protect physical interference with law enforcement activities, even if the interference is motivated by protest, civil disobedience, or dissent, and particularly when it interferes with legitimate government functions.
More Questions to Consider
Interpretations of the First and Second Amendments vary widely. Does the right to be armed break down when the protest is no longer considered “peaceful”? Is it wise to be armed if you are engaging with law enforcement at a protest?
Social psychologist Johnathan Haidt argues that people are divided by politics because political parties appeal to different moral foundations: care/harm, fairness/cheating, loyalty/betrayal, authority/subversion, and sanctity/degradation. He argues that the political left relies mostly on the foundations of care and fairness, while the right relies on all five. Which of these values does this case appeal most to? How might that affect the way the media covered it?
One user, Doug (Right bias) in Virginia, asked, “What was Pretti doing in the five minutes prior to the shove? Is there video evidence? Testimony?”
To some, that’s a big blind spot. “Knowing what you don’t know” is important in conversations about sensitive issues, and when drawing conclusions about the actions of others, like Pretti and the involved agents.
To others, it’s less relevant. Some think there’s no excuse for what happened to Pretti, no matter what the minutes leading up to the shooting were like.
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