search
top

Open Carry: A Prescription for California?

Professor Adam Winkler has an article advocating that California pass an open carry law to keep down the number of guns on California streets:

But if the state allowed open carry, concealed carry could be banned entirely. In the 2008 case, the Supreme Court noted approvingly that courts have consistently upheld such bans, so long as people could carry openly.

I would argue that passing such a law, with the expressed purpose of keeping the number of people exercising their rights as low as possible, would actually be unconstitutional, despite what older rulings might say about concealed carry. I think that would properly constitute evasion.

The courts that allowed restrictions on concealed carry were operating in an environment where concealed carry was strongly stigmatized, and viewed as sneaky and underhanded, while open carry was widely accepted as the socially preferable method of carry. Today, the situation is arguably reversed. That the state may regulate the manner of carry is hardly contested, but the regulation must serve a compelling state interest, and “minimize the number of guns on California’s streets,” as Prof. Winkler mentions, is not among those compelling and legitimate interests.

At the University of Tennessee Symposium on the Second Amendment, this very issue was discussed in the second half of the program about 41 minutes in, by Prof. Brannon Denning. “Anti-Evasion Doctrines and the Second Amendment.” I would encourage everyone to watch the whole thing, but that segment in particular.

I doubt California will go the route Prof. Winkler recommends, but if it does, I agree with Glenn Reynolds that they might discover open carry is not as unpopular as he thinks, when it’s the only option the state allows. And if it does follow the recommendation, I look forward to his LA Times article being cited as an example of such a move being an unconstitutional evasion.

14 Responses to “Open Carry: A Prescription for California?”

  1. ParatrooperJJ says:

    They had one – One of the reasons why the court made it’s current ruling was that CA banned open carry.

  2. Sigivald says:

    One wonders if it’ll ever actually get into their heads that this “Constitution” thing isn’t actually optional?

    This is especially baffling, as Winkler is a Professor of Constitutional law; would he accept for a second that a policy intended to lead to less speech would pass First Amendment muster, because it still let people talk?

  3. Jack says:

    And note that he isn’t talking about removing the CC system and replacing it with Shall Issue OC.

    Oh no, he wants to keep the May Issue CC scheme.

    Funny that. I guess the “peer pressure” to keep one from carrying only applies to the proles.

    I’m also shocked that he admits that Cali used to have OC but taht it was banned.

  4. Jack says:

    And note that the “guns on the streeet” he wants to minimize, would be in the hands of people who have taken several hours of training and passed a background check.

    This is a man who specifically wants to deny carry to a million people (he did say a million reasons) who *he* thinks can pass a background check and get trained.

    Funny… I thought Gun Control *only* wanted background checks and mandatory training?

  5. Patrick says:

    Winkler is one of the other guys, but he at least has half a brain. He “gets” the gun movement, even if he doesn’t agree with our outcome. He has seen the internal debates we’ve had over OC, but I think he misreads this one.

    I think his line of thought might have been more accurate maybe five years ago, when OC in urban areas was something our community hadn’t even quite come to terms with yet. I think we are now at peace with people OC’ing in public provided they do it for defense and not for show. Especially when CC is an option.

    So what Winkler proposes is to make OC the only way someone can reasonably carry arms for defense in California. That pretty bypasses any gun-community OC drama filters. If the only choice I got in Redondo Beach is to OC at the beach, then that’s what people will do and nobody in our camp is going to have heartburn when their neighbor does it.

    There will certainly be those who won’t carry so as to avoid the stares. Even I would probably weigh the option a bit more carefully, in some circumstances.

    The backfire on Winklerites would be interesting, too. Consider how horrible the reaction was to the Starbucks OC drama. Imagine that everywhere in public. Ought to be fun.

    Also consider that if this was a “right”, then the police have no cause to stop someone for display of a firearm. It could not be – alone – suspicious enough. Might be fun from a law-enforcement perspective.

  6. RP says:

    Accepting carry in CA is beyond swallowing a bitter pill for CA liberals. Its swallowing a giant elephant turd. It won’t go down easily.

  7. The legislature will never pass a bill allowing open carry, even is licensed. There are too many people that are terrified at the sight of a gun: the outcry would be immediate and irresistible.

    In the end, if Peruta is upheld, California will become virtual shall-issue concealed carry, and the anti-gun folks will try to either limit places where one may carry. They will also pretend that not many people carry, since they cannot see the guns.

    • SDN says:

      Which is what Winkler is counting on. When anyone open carrying is banned from stores, shopping malls, etc., and the subject of terrified calls from GFWs that “there’s a man with a gun who’s about to shoot someone” the hassle factor will be maximized.

      • Homerpalooza says:

        SDN – what does the slang GFWs mean? I looked online and found Garment Factory Workers. Not the people who would be making those supposedly terrified calls to the cops. So I’m going to go with Grand Funk Wookies.

      • Zermoid says:

        You know what, that idea could be turned around, if EVERY gunowner in California started carrying a realistic toy or airsoft pistol in a OC holster on the same day the police would be overwhelmed by the calls.
        Maximize the hassle factor of the ones enforcing an un-Constitutional law instead!

        And as far as I know there’s no law against carrying a toy handgun in a real holster is there?

  8. Pete says:

    I’ve got this very pretty cowboy rig for my 1911 Longslide that I very much plan on strapping on if they legalize open carry.

  9. Matthew Carberry says:

    Richards v. Prieto just got released. Yolo County is now in the same position as San Diego.

    Only Baker v. Kealoha (Hawai’i may-issue “good cause” challenge) is left.

top