Videos of Pretti's killing contradict federal government accounts portraying him as an armed terrorist, and immediately sparked a debate over how two fundamental rights — the right to protest and the right to bear arms — can coexist.
In 2008, in District of Columbia v. Heller
, the Supreme Court recognized an individual right to keep and bear arms for self-defense in the home. The court extended that right to public places with another groundbreaking decision in 2022, in New York State Rifle & Pistol Association v. Bruen . But the justices have yet to articulate how that right is supposed to function when it collides with law enforcement operations.Firearms follow Americans into public life, onto sidewalks, in parks, and in some instances, to demonstrations, and Pretti's killing has forced that unresolved tension into the open.
Matthew Cavedon, director of the libertarian think tank Cato Institute's Project on Criminal Justice, said people across the political spectrum carry firearms at protests.
"Political gatherings are not themselves a reason to disarm everybody. Certainly, neither is the fact that government officials are just present somewhere out in public," said Cavedon. "I don't know of any reason why a person legally cannot bring a firearm to a protest if they're doing so responsibly and not in an aggressive manner."
When Lawful Carry Meets Law Enforcement
Videos of Pretti's Jan. 24 killing show U.S. Border Patrol officers tackling him to the ground. At some point, the officers appear to take a handgun from Pretti, who is restrained. They then fire at Pretti repeatedly.
The U.S. Department of Justice announced on Jan. 29 that it had started an investigation into the shooting, after the Trump administration initially said it would only conduct an administrative use-of-force inquiry into the officers' conduct.
In the immediate aftermath of the shooting, statements by high-ranking U.S. government officials placed the blame squarely on Pretti, starting with President Donald Trump, who told reporters that protesters "can't have guns."
"I don't like that he had a gun," the president said on Jan. 27.
Comments by other administration officials, including U.S. Homeland Security Secretary Kristi Noem and FBI Director Kash Patel, similarly implied that armed presence at protests is unusual or incompatible with peaceful conduct.
William Sack, the director of legal operations at gun rights nonprofit the Second Amendment Foundation, told Law360 that those comments included "factually inaccurate" statements about the right to bear firearms and the assumptions that law enforcement officers should make about people who carry guns at protests.
Sack said that although the second Trump administration has been generally friendly to gun rights, challenging several firearm regulations passed in the wake of the Bruen decision, the officials' narrative that framed Pretti as an armed person looking for trouble was "flatly wrong."
"It is constitutionally wrong, it is legally wrong, and it creates a very dangerous situation for legal gun owners all over the country," he said.
Overall, Sack said, law enforcement has no reason to assume that people who show up at demonstrations armed intend to be violent.
"Our response to that has always been that if you are in law enforcement and you believe that it is a danger to yourself when the peaceable citizens that you are charged with protecting and serving also act to protect themselves, then you shouldn't be in law enforcement," Sack said.
Since January 2020, there have been more than 600 armed demonstrations across the United States, many without major media attention, according to data jointly analyzed by gun control nonprofit Everytown for Gun Safety and the Armed Conflict Location and Event Data Project, an independent nonprofit mapping political violence and protests worldwide.
Two Constitutional Rights, One Public Space
Numerous Supreme Court decisions say free speech is a fundamental right, but not an absolute one. The court has identified specific exceptions to that right, such as obscenity, defamation, incitement to imminent lawless action and true threats.
In contrast, the Supreme Court rarely addressed the Second Amendment before the Heller decision. That was followed by Bruen, which in addition to recognizing a right to carry firearms for self-defense in public places also imposed a new test for gun laws.
In Bruen, the court signaled skepticism toward expansive lists of "sensitive places" where firearms can be prohibited. Penning the majority opinion, Justice Clarence Thomas made clear that, for instance, New York City could not forbid gun possession in the entirety of Manhattan just because it's densely populated.
After Bruen, litigation has repeatedly tested sensitive place bans and related carry restrictions, producing a patchwork of preliminary injunctions, partial reversals and appellate rulings in states like New York, New Jersey, Maryland, California and Hawaii.
The right to free expression and the right to self-defense are often framed as natural rights, meaning they are inherent to humanity and existed prior to the Constitution. Gun rights advocates say people should not have to choose which of those rights is more important at a protest.
"I don't think there really is a legal gray area here," said Aidan Johnston, the director of federal affairs for Gun Owners of America, a gun rights group that has challenged firearm regulations in several states. "Every American has a First Amendment right to freedom of speech and peaceful assembly, and you also have a Second Amendment right to bear arms, and nothing in the Constitution says that when you exercise your First Amendment, you're not allowed to exercise your Second Amendment."
Adam Wilson, the director of legislative affairs at Gun Owners of California, said in an email that the conduct of a gun owner is what matters.
"Carrying a firearm in public carries a significant responsibility — lawful armed citizens must conduct themselves in ways that defuse danger, not amplify it," Wilson said.
While Gun Owners of California believes state-enacted firearms carry restrictions are unconstitutional, Wilson said the organization "will never advocate for anyone to break the law."
"We oppose unlawful confrontations and violence by anyone — including protesters, civilians or government agents — and believe constitutional rights must be exercised responsibly," he said.
Cavedon said the actions of each individual armed demonstrator should guide police response, not the very notion of being armed.
"What we look for is: How is somebody behaving with a firearm?" he said.
State and federal law often construe making a verbal threat to use a gun or brandishing a firearm as assault, but Cavedon noted that the videos of Pretti's shooting don't show him doing either.
"His gun was in his waistband. It was holstered. He didn't brandish it. He wasn't behaving aggressively, in the sense of making any kind of verbal threats at the officers or saying that he was going to commit harm," Cavedon said. "To say that he could then be forced to the ground and forcibly disarmed, that is questionable, and then certainly by the time that somebody's been disarmed to then use force against them, that is excessive force."
A Line Between Self-Defense and Armed Crowds
Long before modern courts recognized a broad right to carry firearms in public, American law drew a firm distinction between individual self-defense and the collective bearing of arms, said Michael Dorf, a constitutional law professor at Cornell University Law School. While individuals were generally understood to have a right to possess weapons for personal protection, the public carrying of arms in groups was often treated as a threat to civil peace.
Founding-era "affray" laws and prohibitions on going armed "to the terror of the people" reflected a concern not only with violence itself, but with intimidation and disorder, Dorf said.
Under those laws, a person could be deemed to be committing an affray just by moving in a group of armed people, even without an intention to terrorize anyone. Armed crowds were historically associated with rebellion, coercion and the breakdown of public order, and were frequently subject to regulation or outright bans, even when individual weapon possession remained lawful.
"You might say, 'Look, the First Amendment protects the right of the people to assemble and petition for redress of grievances. The Second Amendment protects the right to bear arms.' And so it seems like you put those two together and the people have a right to assemble bearing arms," he said. "The Constitution doesn't work like that. You can't just add up two rights that don't cover something, and it magically means it covers something."
There is little historical support for the notion that publicly assembling while armed falls within the core of either amendment, Dorf said. In his view, he added, states could constitutionally bar firearms at large protests even while protecting individual public carry in other settings.
Modern Second Amendment doctrine, however, has largely shed those historical guardrails. In expanding the right to carry firearms beyond the home, courts have focused on individual possession while giving far less attention to the risks posed by armed collective activity in public spaces, Dorf said. With the Bruen decision, the Supreme Court further narrowed the tools available to address those risks.
The lack of a clear doctrine addressing the collision between free speech and the right to bear arms becomes most visible in the context of protest, scholars say.
Timothy Zick, a professor at William & Mary Law School who studies the First Amendment and public demonstrations, said the act of protesting is premised on persuasion and the expectation of nonviolence. The presence of firearms, he said, fundamentally alters that dynamic.
Armed protest transforms a forum designed for expressive activity into a space where disagreement carries the risk of lethal force, discouraging participation and suppressing speech, Zick said.
Zick mentioned empirical research showing that people are less likely to attend demonstrations, speak openly, carry signs or bring family members to demonstrations when firearms are present. That "chilling effect," he said, does not require violence to materialize; the perceived risk alone is enough to deter free speech in some situations.
"If you have a right to public protest under the First Amendment, but also a right to public carry, is it possible to somehow reconcile those things?" he asked. "I've come to the conclusion that it's not. They're not reconcilable."
In the absence of clear rules governing firearms at demonstrations, the balance between First and Second Amendment rights often turns on the discretion of law enforcement officers on the ground. That raises the prospect of uneven or politicized application, because the same conduct may be treated as lawful in one context and threatening in another, legal experts say.
Those dynamics carry broader implications for democracy, said Joseph Blocher, a Second Amendment scholar at Duke University School of Law.
"Guns and speech have long had a complicated relationship," Blocher told Law360 in an email. "Firearms can be and have been used to protect non-violent protestors, including during the Civil Rights Era, and in that respect to defend speech. They've also been used to silence and oppress those very same people, and for many people today the presence of a gun has a chilling effect on the willingness to speak."
While a lot turns on the specifics of how a gun is being displayed or used in public, Blocher said, the state of public discourse points to a deeper issue.
"We should worry about the state of our public debate if people feel the need to be armed to engage in it," Blocher said. "That is not the sign of a healthy public sphere; no one should want firepower to set the limits of what can and can't be said."
A Right That Turns on Who You Are and What You're Saying
P. Deep Gulasekaram, a constitutional law professor at the University of Colorado Law School, said the killing of Pretti fits into a much longer history of a right to bear arms that has been applied unevenly.
"There have always been two versions of the Second Amendment," Gulasekaram said. "People in the United States have experienced the Second Amendment and the protections that it might offer differently."
Historically, he said, the right to bear arms was routinely denied or violently enforced against enslaved people, racial minorities and other disfavored groups, even when those individuals were acting lawfully. That disparity, Gulasekaram said, has persisted well into the modern era.
"When racial minorities have firearms, even lawfully, they are at higher likelihood of being killed by state actors or other private actors," he said.
Courts have often justified unequal treatment by narrowing who counts among "the people" protected by the Second Amendment, Gulasekaram said, particularly in cases involving noncitizens. Some decisions, he said, have relied on historical analogies to uphold firearm prohibitions for immigrants living in the U.S. without legal authorization, treating immigration status itself as a proxy for dangerousness.
That same logic of differential protection may now extend beyond race and immigration status to political views, Gulasekaram said. Even individuals who would traditionally fall at the core of the Second Amendment's protection — U.S. citizens lawfully carrying firearms — may lose that protection when their conduct is intertwined with protest or opposition to government policies, he explained.
"If you choose to exercise your First Amendment rights to film and to record government activities in public, that also puts you in a different category of Second Amendment protection," he said.
Gulasekaram compared the case of Pretti, who was publicly demonstrating against the Trump administration's aggressive immigration enforcement policies, to that of Kyle Rittenhouse, a white man who shot three people, two of them fatally, during anti-police brutality protests in Kenosha, Wisconsin, on Aug. 25, 2020.
A jury acquitted Rittenhouse of multiple charges, including homicide, accepting his claim of self-defense. Pretti, on the other hand, was killed on the spot by armed agents while he was already restrained.
Gulasekaram placed some of the blame on the Supreme Court, which he said has failed to grapple with how its expansion of the right to carry firearms operates in moments of political conflict, protest and confrontation with the state.
"If you could not predict that something like this would happen based on those cases, then I don't know what to tell you," he said. "The blood here, in my view, is partly on the court's hands."
--Editing by Alanna Weissman.