When CBS News Chief Washington Correspondent Major Garrett invited me on to break down the Second Amendment dimensions of the Minneapolis shooting of Alex Pretti, I was glad to walk through the constitutional basics — because a lot of the rhetoric swirling around this incident, from all directions, has badly muddled the legal picture.
Here is the core principle: if you are legally permitted to carry a firearm and you bring it to a public protest, you are not automatically doing anything unlawful, dangerous, or unwise. That is settled Second Amendment law and settled American history. But there is a line, and understanding where that line sits is everything.
Lawful Carry at a Protest Is Constitutionally Protected
White House Press Secretary Karoline Leavitt put it correctly when she confirmed that Americans have a Second Amendment right to bring a firearm to a public protest, a demonstration, or a march. That is not a controversial legal position. It is the straightforward application of the right to keep and bear arms in public spaces.
My go-to example when I explained this to Major Garrett: walking into a bank while legally carrying a firearm for self-defense is perfectly fine. The constitutional protection is real. The moment you pull that firearm out, wave it around, and start demanding money, you have left the protected zone entirely. That transformation — from lawful carry to criminal misuse — is the operative distinction the Second Amendment draws.
The same logic applies on a protest line. Marching while armed, cheering while armed, standing while armed: all consistent with the Second Amendment’s history and tradition. Minnesota law permits it. Most state laws permit it. The right is not stripped away because you happen to be exercising your First Amendment rights at the same time.
Affray, Riot, and the Historical Limits on Carry
There are, however, well-recognized historical limits on the manner of carry — limits that go back centuries. The common-law doctrine of affray — fighting or armed intimidation in a public place “to the terror of the people” — and the related concept of riot both represent situations where the Second Amendment’s historical tradition imposes meaningful constraints.
These are not modern gun-control inventions. They trace to the English Statute of Northampton (1328) and were imported into American law well before the Founding. The Bruen historical tradition analysis expressly acknowledges this body of historical law on carrying in a manner calculated to terrorize the public or incite violence.
The operative question in the Pretti case — and it is a factual question, not a legal one I can answer from the outside — is whether what happened in Minneapolis crossed from constitutionally protected presence with a firearm into conduct that implicated these historical limits. That is precisely what the investigation is supposed to determine. As the video evidence presently stands, there is no footage showing Pretti unholstering his legally carried firearm. That matters enormously for any legal analysis of what the officers perceived and whether their response was lawful.
Actions Speak Louder Than Rhetoric
I was asked point-blank whether I share the alarm that some Second Amendment advocates have expressed about the rhetoric coming from Trump administration officials regarding this incident — Secretary of Homeland Security Kristi Noem’s “domestic terrorism” label, Stephen Miller’s “would-be assassin” characterization.
My honest answer: no. Not because those statements are beyond criticism, but because I have always believed actions speak much louder than words. And when you look at what the Trump administration has actually done on Second Amendment policy, the record is strongly favorable. The DOJ has filed pro-Second Amendment amicus briefs in the Third Circuit challenging New Jersey’s assault-weapons restrictions. It filed a brief in the Seventh Circuit opposing Illinois’s PICA assault-weapons ban. It sued the District of Columbia over its semi-automatic firearms registration ban. That is a consistent, concrete pro-Second Amendment action record.
When Treasury Secretary Scott Bessent makes an off-the-cuff comment in a brief interview that is not particularly well-calibrated on Second Amendment doctrine, I am not going to place enormous weight on that. Cabinet officials sometimes field questions a step or two outside their subject matter expertise. What matters is whether the administration’s legal posture — the briefs it files, the cases it brings — aligns with the right. So far, it does.
A Word of Practical Sense
None of this is a legal defense of any specific person’s conduct, and none of it constitutes advice about what any individual should do. But I will say plainly what I told Major Garrett: if you are going to place yourself in a situation where you are physically in proximity to law enforcement during a tense enforcement action, you have to be extraordinarily careful — even if your intentions are entirely benign.
Mistakes happen. Perception matters enormously in a self-defense analysis. A law enforcement officer who genuinely perceives an imminent threat of death or serious bodily harm can legally respond with deadly force under the laws of virtually every state. Whether that perception was reasonable in any given situation is exactly what courts and investigations are designed to determine.
Carrying legally is your right. Exercise it wisely.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.