Fact-checking FBI Director Patel’s claim that weapons are banned at protests

This article originally appeared on PolitiFact.

After the shooting death of Alex Peretti, a concealed carry permit holder, the debate over gun rights added a new layer to the federal government’s aggressive immigration enforcement activity in Minneapolis.

Senior Trump administration officials said Pretty was carrying a gun and ammunition, so he planned to assassinate law enforcement.

The day after Preeti’s murder, FBI Director Kash Patel discussed the case on Fox News’ “Sunday Morning Futures.”

“You can’t bring a loaded firearm with multiple magazines to any type of protest you want. It’s that simple. You don’t have the right to break the law and incite violence,” Patel said.

The department shared a photo of a rifle and additional ammunition it said Border Patrol agents took from Pretty on Jan. 24 on Nicollet Street in south Minneapolis.

He watches: You can’t get weapons. ‘You can’t go in with guns,’ Trump says of Alex Peretti’s killing.

Video footage that emerged in the first 48 hours after the shooting does not show Pretty holding the gun in his hands or pointing it at federal agents at any time. Some footage shows agents disarming Pretty shortly before he was shot.

The administration said the Department of Homeland Security would conduct an internal investigation, but its scope was reportedly limited.

The shooting of a protester who had a concealed carry permit drew criticism from gun rights advocates, who pointed to Second Amendment protections.

“Every peaceful citizen of the State of Minnesota has the right to keep and bear arms — including while attending protests, serving as observers, or exercising their First Amendment rights,” the Minnesota Gun Owners Caucus wrote. “These rights do not disappear when someone is lawfully armed, and must be respected and protected at all times.”

The FBI declined to comment for this article. Patel sought to clarify his position in a January 26 interview with Fox News Channel’s Sean Hannity, saying: “We don’t go after people and violate their freedom to express their peaceful protest. We certainly won’t go after people under their Second Amendment rights to bear arms — only if you incite violence or threaten to harm law enforcement officials and otherwise break the law.”

We asked 13 legal experts about Patel’s statement. They agreed that Patel was wrong about the Minnesota law, although they cautioned that some states ban weapons at protests.

In general, “there is no blanket prohibition or long-standing tradition against bringing legally owned and carried firearms to a protest, parade, demonstration, or other public event,” said Clark Neely, senior vice president for legal studies at the libertarian Cato Institute. “On the contrary, the default practice or tradition is that a person who legally carries a firearm can bring it to public gatherings, including protests and demonstrations.”

It has not been unusual to see people carrying weapons at protests in recent years, such as a 2020 protest against Michigan’s pandemic laws at the state Capitol in Lansing.

Was Pretty within his rights to bear arms?

Experts widely agree that because the state legally allowed Pretty to carry a gun, he had the right in Minnesota to do so, including while protesting.

While some state laws restrict the use of weapons during protests, “Minnesota has no such law,” said Konstadinos Moros, director of legal research and education at the Second Amendment Foundation.

Eleven states and the District of Columbia ban concealed weapons at demonstrations and protests, and 11 states and the District of Columbia prohibit open carrying of weapons at demonstrations or protests, according to a tracker compiled by the anti-gun violence group Giffords. Of these states, seven states and D.C. ban both.

Several gun law experts also told PolitiFact that they are not aware of any states that explicitly prohibit something else Patel mentioned: additional magazines for ammunition.

Some commentators on social media said Preity broke the law by not carrying his pass or any other ID. (Homeland Security Secretary Kristi Noem and former senior Minneapolis Customs and Border Patrol official Greg Bovino have claimed that Peretti did not carry identification.) State law says failure to carry a permit is a “petty misdemeanor” subject to a fine of up to $25. State law says such a violation “does not constitute a crime.”

Federal officials said Pretty bypassed probation and interfered with law enforcement activity. Experts agreed that Pretty would have been legally prohibited from threatening, interfering with or lying to officers. “In general, peacefully monitoring a demonstration is different from criminally obstructing law enforcement,” said David Koppel, research director at the conservative Independence Institute.

He watches: Levitt addresses Trump’s position on Second Amendment rights in the wake of the murder of Alex Peretti

The video footage that has emerged so far does not show that Preeti criminally obstructed law enforcement, although doubts and gaps remain. Some of the footage begins with him helping a woman pushed into the snow by a federal agent. He was holding a phone in his hand.

The majority of states have laws that are more expansive than Minnesota’s, allowing concealed carry of weapons without a permit. “In those states that have broad public carry rights, the mere fact that an individual is armed during protests is not in itself a crime,” said Darrell Miller, a law professor at the University of Chicago.

What have the courts said about gun rights at protests?

Legal experts said the Supreme Court’s record strengthens the Second Amendment right to bear arms at protests, which are sometimes referred to in statutes as “public assemblies” or “assemblies.”

The Supreme Court’s most recent landmark decision is 2022’s New York State Rifle & Pistol Association v. Bruin. The justices, in a 6-3 decision, found that the right to carry a firearm in public for self-defense has deep historical roots, and that “special need” is not necessary for its exercise.

Timothy Zeck, a professor at the University of William and Mary College of Law, said the decision allowed states to ban the carrying of firearms in public in some “sensitive places,” such as schools and government buildings, and some states have also moved to restrict the carrying of firearms in some events, such as protests. Whether these laws can be passed in the Supreme Court depends on whether similar laws existed during the 18th century and perhaps the 19th century, Zick said.

The Supreme Court case currently under review, Wolford v. Lopez, will decide whether Hawaii can restrict people’s ability to bring guns onto private property that is open to the public. People who sued to block the law won the previous round in the Ninth Circuit Court of Appeals. Moross said the victory in the “extremely hostile” Court of Appeals to the Second Amendment is notable.

In another decision issued on January 20, the Fourth Circuit Court of Appeals found that Maryland’s ban on carrying weapons near public demonstrations is constitutional. Moross said this division between the circuits may make the Supreme Court more likely to hear a case that explicitly involves protests and gun rights.

Neely agreed that based on the recent court record, “laws prohibiting the carrying of lawfully owned firearms at protests and other public events would very likely be struck down by the Second Amendment.”

Our rule

“You can’t bring a loaded firearm with multiple magazines to any type of protest you want. It’s that simple,” Patel said.

Some states have laws prohibiting the use of weapons during protests, but Minnesota’s concealed carry law does not include such a ban. Pretty had a concealed carry permit. Even if he did not have a permit or identification card at the time, Minnesota law considers it a minor violation. Some states’ laws are more lenient than Minnesota’s, allowing people to carry weapons to protests even if they don’t have a concealed carry permit, as Pretty did.

The statement contains an element of truth — the legality of bringing weapons to protests depends on the state — but it ignores that this incident occurred in Minnesota, where the law allows the use of weapons at protests. We rate the statement “Mostly False.”