We Can Stop Open Carry of Long Guns Outside Schools

What do you do when a stranger begins standing outside your child’s elementary school with a rifle strapped to his back? Or worse, what do you do when the police tell you that the stranger’s behavior is perfectly legal? 

Several Texas parents and school officials had to grapple with those questions in real time when, in December 2023, Isaiah X. Smith began routinely pacing outside of elementary and middle schools while openly carrying a long gun. Many parents felt “terrified” at the sight of the man, who typically carried the long gun slung to his back and attached a GoPro camera to his chest, while waving at children. Smith did not limit his activities to local schools. He also openly carried his long gun into downtown Austin, including inside the Austin Public Library. Law enforcement were called multiple times on Smith, and yet each time the police said that he was doing nothing wrong because he was on a public sidewalk. 

We believe that law enforcement’s assessment of the situation was clearly wrong. According to our analysis, the families and school officials caught in that terrifying circumstance could seek recourse under both Texas and federal law to protect their children and communities. Federal law prohibits firearms within 1,000 feet of a school (subject to limited exceptions), 18 USC § 922(q)(2), and Texas’s disorderly conduct law prohibits carrying a firearm in public in a way meant to alarm, Texas Penal Code § 42.01(a)(8).

Smith’s conduct is part of a troubling and emerging trend. In 2023, a 20-year-old Maryland man spent weeks openly carrying an AR-15 outside a school bus drop-off site in Anne Arundel County, Maryland, to protest recently passed state laws surrounding firearms. He would also wave to children while doing so. In late November 2023, a Memphis preschool and elementary school were sent into lockdown after a Memphis man walked the street near their campuses holding an AR-15. 

While recent Second Amendment decisions have injected an element of uncertainty into some aspects of the constitutional right to carry firearms, these examples do not fall into those areas of uncertainty. Conduct of this sort—i.e., carrying a long gun within a school zone and in a menacing manner—fits comfortably within applicable federal and state laws that can and should be enforced without raising any colorable Second Amendment concerns. Indeed, the Fifth Circuit Court of Appeals, whose jurisdiction includes Texas, recently held that “carrying firearms in a manner that poses a ‘clear threat of physical violence to another,’ specifically to school children, could constitutionally be restricted around schools.” United States v. Allam, No. 24-40065, 2025 WL 1681132, at *6 (5th Cir. June 16, 2025) (quoting United States v. Rahimi, 602 U.S. 680, 698 (2024)).

Carrying a long gun (rifle or shotgun) within 1,000 feet of a school violates federal law, namely the Gun Free School Zones Act (“GFSZA”), 18 U.S.C. § 922(q)(2)(A).¹The GFSZA also requires that the firearm have “moved in or otherwise affects interstate or foreign commerce.” See 18 U.S.C. § 922(q)(2)(A). Most commercially available firearms meet this test and firearms sourced entirely with parts manufactured in a single state are rare. In Smith’s case, police were wrong to take the position that Smith was in compliance with this statute because he possessed a Texas handgun permit. The statute contains an exception where an individual may carry a firearm into a school zone if, among other requirements, “the individual possessing the firearm is licensed to do so.” Id. § 922(q)(2)(B)(ii) (emphasis added). But that exception should not apply here. Although Smith may have been licensed to carry a handgun, he could not have been licensed to carry “the firearm” he had strapped to his back—a long gun—because Texas has no permitting scheme applicable to long guns. Since he was not licensed to carry the long gun, his conduct did not fall within this exception. 

Case law applying the GFSZA reinforces this conclusion in similar circumstances. The district court in Allam made clear that the defendant’s conduct was illegal regardless of whether the defendant possessed a Texas handgun carry license, explaining that the GFSZA “does not protect those individuals who choose to carry a rifle or a shotgun in one of the many states that does not require a license to carry such a firearm.” 677 F. Supp. 3d 545, 565 n.30 (E.D. Tex. 2023). This conclusion is reinforced by the law’s legislative history, as lawmakers were clearly aware that someone possessing a rifle or shotgun would not fall within this exception in states with no licensing scheme for long guns. 

Texas law also prohibits displaying a firearm in public where it is “calculated to alarm.”  Specifically, Section 42.01(a)(8) of the Texas Penal Code, Disorderly Conduct, provides: “A person commits an offense if he intentionally or knowingly … displays a firearm or other deadly weapon in a public place in a manner calculated to alarm.” In a recent case, the Texas Court of Criminal Appeals concluded that “calculated” means “likely” according to the perspective of an ordinary observer and based on an “objective standard of reasonableness.” Looking at the statute as a whole, the court held that “to be guilty of disorderly conduct under Penal Code Section 42.01(a)(8), a person must intentionally and knowingly display a firearm in a public place in a manner that he knows is likely, under an objective standard of reasonableness, to frighten the average, ordinary citizen.” Applying the court’s analysis to Smith, and given the “objective probability” that a reasonable, ordinary person is likely to be alarmed by a stranger toting a long gun around the perimeter of an elementary school, the reasonable conclusion is that this conduct was “calculated to alarm.”

More generally, as the U.S. Supreme Court has observed, “the display of a gun instills fear in the average citizen.” Other courts have made similar points. The Sixth Circuit stated that it was “predictable” that bystanders would call the police on a man in a public park with an AK pistol strapped to his chest. A dissenting judge from Texas’s Criminal Court of Appeals wrote that “it is common knowledge that many ordinary people, even in Texas, may become alarmed at the sight of a gun in public, regardless of the legal right to openly carry a firearm. … [M]ost gun owners are also subjectively aware that many people may become alarmed when they see a gun carried openly in public—holstered or not.” The Wisconsin Supreme Court similarly concluded that a storeowner “carry[ing] a gun openly or in a holster … would … frighten friends and customers.” And all of these observations about the intimidating effect of guns are heightened when the conduct in question also violates a federal statute, like the GFSZA, because that adds an additional consideration that would support a reasonable fear that an individual intended to use that firearm criminally.

In short, bad actors who openly carry long guns in front of school children and families do so knowing that they are likely to cause fear and alarm—and therefore can be found to have acted with that intention. If they lack a qualifying, in-state license to carry all of the firearms in their possession they are also violating federal law. In the event that another individual appears to frighten and harass school children, either in Texas or elsewhere, law enforcement should take swift and strong action. 

NOTE: The analysis herein reflects the opinions of Everytown Law and is presented for informational purposes only; it does not constitute legal advice or establish an attorney-client relationship.  Private citizens and public officials should consult with their own counsel about these issues and arguments and how they might apply depending on specific facts and circumstances. The outcome of any prosecution or litigation around these issues is unpredictable.