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.