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The State of Carry Law

Given the recent dust-up over certain methods of open-carry activism, I thought it would be worthwhile about talking about where carry law stands, and what legal strategists are trying to accomplish. The next big case the Supreme Court takes is likely going to revolve around the “bear” portion of “keep and bear arms.” We want to get the broadest right possible, but there are complications.

The trouble we run into is that there are several state Supreme Courts have have upheld prohibitions on concealed carry, and many state Right to Keep and Bear Arms provisions specifically allow it to be prohibited or restricted. Now, in many of those instances, the reason that concealed carry was allowed to be prohibited is because open carry was allowed. Historically, in many parts of the country, particularly the South and Southwest, concealed carry was an alarming practice that made people think that the person practicing that carry method was sneaky and up to no good.

So in terms of going the other way, we also have to deal with the fact that a number of states with a strong gun culture either prohibit or restrict open carry. There’s also a long legal tradition in bearing arms that there’s no right to bear arms in a manner or way that’s intended or likely to cause alarm among the population. That number has been dropping, but it’s something that has to be dealt with from a legal point of view if you want to take this issue to court.

The way legal strategists are attempting to reconcile these two traditions is to argue that there is a right to bear, or carry firearms for self-defense, but that the state has an interest in regulating the means by which one may wear a firearm for the purposes of not disturbing or alarming the public. In this theory, states could prohibit either concealed or open carry, but had to allow it in some manner, and could only regulate it in a manner that’s consistent with serving the government’s interest (in other words, they couldn’t regulate in a manner meant to discourage people from carrying generally). This is less than ideal, but when dealing with a long tradition of regulating, rather than prohibiting carrying firearms, is something that has to be dealt with when this is put before judges. Something to think about in the current dust-up currently occurring with certain styles of open carry activism.

42 Responses to “The State of Carry Law”

  1. HappyWarrior6 says:

    When you say “legal strategists,” do you mean pro-gun ones?

    “Regulation” is a term means a lot of things to different people, and I certainly hope our side is not advocating that more is needed based on history…

    “Regulation” runs the gamut… from barring violent felons from carrying (or owning), to providing a reason to for the state to grant the “privilege” as in Maryland.

    How far in “deregulating” are we politely asking? Are we talking about Woollard?

    • Sebastian says:

      Yes… I mean the people who are taking cases through the federal courts right now.

      • Chris says:

        You are spot on, as was told directly to me by both Alan Gura and Gene Hoffman of Calguns. They are focusing on a time, place and manner framework similar to how the 1st Amendment is regulated. When I specifically commented to Hoffman about how this would open the door to states banning OC, he said that first, the focus now is on states that do not allow carry at all and secondly, that the likelihood is that states that currently allow OC would probably not ban OC should this framework get laid out. Mainly because if they wanted to ban OC, then by and large they could right now and choose not to.

    • Sebastian says:

      The current argument is the state may not prohibit the carrying of firearm. In the case of Wollard, that Maryland’s regulation amounts to a prohibition, and that the “good cause” requirement is unconstitutional, because that the right exists is all the cause anyone needs to exercise it.

      • ToddG says:

        My MD permit just got renewed; I’ve had it for about twelve years now. I’m very much a pro-concealed, anti-open advocate. But if SCOTUS comes down and tells states they have to allow at least one or the other in a no-permit or must-issue permit way, I’ll happily use whichever method is legal in whatever state I’m in.

        Wisconsin is a great example of a state that only created a CCW system when the state government was forced to swallow what was essentially “constitutional open carry.”

        Let’s just hope the makeup of SCOTUS doesn’t change before this finally reaches their bench, and let’s hope that Roberts doesn’t decide to repeat his Obamacare aisle-crossing idiocy.

        • HappyWarrior6 says:

          The problem is that even under OC-only, condition 1 carry is still not allowed in a vehicle. I just don’t see what anyone gains by advocating OC over CC.

          • Zermoid says:

            That’s a law in PA, in may not be elsewhere.
            It has never made sense to me either, why I can carry a loaded gun in a vehicle with a CC card, and not if I carry it openly. How it is carried should have no relevance.

      • HappyWarrior6 says:

        Gotcha. Thanks.

  2. Dave says:

    You used too many big words that the OC crowd is not going to understand. Complex legal issues are things that the OC crowd ignores. They’re all about shock value with no long term plan and full of childish tactics.

    • Patrick H says:

      Way to be condescending there buddy. Thanks for you insights. With friends like you, who needs Bloomberg?

      • Travis says:

        No kidding. At least we’re allowed to gaze upon his logical glory and righteousness. Perhaps when we refer to what Dave says, we should capitalize the H, as in, His magnificence.

    • I think much of the OC movement is a bit silly and at times counterproductive, but I see no point in unnecessary insults. Many of them are convinced that OC will enlighten the antigun population because they spend too much time talking to others who share their viewpoint. It isn’t an inability to understand “big words.”

  3. Jdude says:

    Dave,
    I’d rather you stop insulting open carriers. The majority of us aren’t the sort you seem to think we are.

    • Dave says:

      I’ve talked to enough of you at your rallies and seen more than enough of your antics. You’re all cut from the same cloth. I really like reading your forums. You’re more than willing to brag about stupidity and your foul mouthed responses that you claim to be part of an education campaign. There’s a great post, right now, over on PAFOA asking how many times you get mistaken for the police when open carrying.

      If you don’t want to be insulted criticized, then stop attention whoring.

      • Jack says:

        I like how in this current interaction the OC advocate is the polite one and the anti is the insulting braggard.

        Gross generalization and smug superiority sure are a winning combination. Because all OC is the same and is all done for the same reason. I mean a guy out for a walk with his dog on a hot day without his cover garment is totally the same thing as someone with an M4gery playing 2nd amendment cosplay.

        • Dave says:

          You guys have exhausted your allowance of tolerance. You’ve lost fights in Michigan. Lost big in California. Your Starbucks grandstanding has back fired, and back fired big. You’re warts, cancers, stains. You guys are more trouble than you’re worth. Your tactic are reminiscent of the 80’s AID activist group ACT UP, it’s nothing more than in your face shock theatrics. It didn’t work for ACT UP and it’s not working now.

          • Jack says:

            You guys?

            So now you’re assuming that I condone the long gun tactics in Starbucks. Or that I agree with shock tactics. Yes, because my commentary to this point has been so approving and condoning of them.

            Well, you’re certianly showing who is full of ignorance and childish tactics.

            Bravo good sir. Bravo.

          • Patrick H says:

            How did they lose big in California? They did something that was legal, and they made it illegal. Sounds like it was de facto banned before it was de jure banned. And hey guess what, that makes it easier for the courts to rule in favor of gun rights!

            And Jack has it right- you paint everybody with one brush. Its nothing different than anti-gunners who paint every gun owner as a redneck crazy person ready to murder in a heartbeat.

            Honestly, you have the same emotion and lack of facts that I run into when I talk to anti-gunners over at TPM. I really don’t want you on our side.

          • Wow. I don’t approve of some of the more outrageous OC tactics, but compared to calling them “warts, cancers, stains”? Oh my.

      • mike w. says:

        Excuse me, but I open carry every day in my state and have never been to an “open carry rally.” I just go about my business like anyone else, only I’m not concealing because doing so would be a felony for me.

        There are lots of us, you just don’t hear about us because we’re not attention whores.

  4. Patrick says:

    I remember back when all we fought over was 9mm vs. 45.

    • Travis says:

      We stopped that because the ’45’ guys finally figured out that us ‘9’ guys were right.

      :P

  5. Jack says:

    If I recall the “Well you’ve got OC so bugger off about CC” was how a California court once got around May Issue.

    I can’t quite recall the case now. Buf if true that has interesting potential given that Cali then banned unloaded handgun OC and then unloaded long gun OC.

    I wonder if there’s lessons in there? Given that Cali is about to ban all semi-auto rifles the “throw them off the lifeboat” lesson doesn’t seem a wise takeaway.

    If I remember those Cali advocates were protesting for Conceal Cary and doing OC because in their counties it was the only legal option. Was there actual Starbucks level obnoxiousness? Or was it actual, let’s say legitimate, protest.

    If I recall Open Carry protesting was part of how Ohio got to be shall issue Conceal Carry. Correct me if I misremember.

    Though the Cali situation raises the issue if their protesting was doomed no matter how polite they were. Espeically as handguns were banned first. Then longguns. And loaded OC had been baned for decades prior.

    Should they have not even tried? Should they have protested without being armed? Is Cali gov simply too stacked against them?

    This does not even get into non-protest OC. Which in Cali, for a time, had been the only way some people could legally carry. Did peacable protesting ruin it for them? Or was Cali hostile enough that the days or people “using the OC loophole” would have been numbered anyway?

    • Peter O says:

      If I remember some of the discussions, Calguns has basically adopted a “Don’t throw me into that briar patch” strategy, so that they can force some form of useable carry on the state.

    • Matthew Carberry says:

      Peralta (Peruta?) v. SanDiego and one other are awaiting a 9th Circuit decision for Cali, and there’s one out of Hawaii challenging their May-issue in name only regime as well.

      The lower-court decision being appealed in Peruta used the “unloaded open carry is legal and should suffice” to uphold may-issue.

      For the most part the -handgun- OC protests were well done (IMO) but Cali being Cali they criminalized it, which had the effect of making the lower court decision untenable.

      The 9th is taking its own sweet time but my understanding of the Nordyke precedent means they will probably come up with a “some form of carry must be allowed.”

      Meanwhile Calguns is working (suing) county by county to enforce the state preemption on their “May-Issue” law, which properly interpreted would be almost effective “Shall-Issue” as personal defense is an acceptable legal purpose.

  6. I think some of the commenters have been too harsh on OC advocates.

    What has OC lost us?
    1) Unloaded OC in California. But before that was choked off, thousands of people who otherwise would have been disarmed by the arbitrary and exclusive CWP process were able to carry sidearms for personal defense. How many lives did that protect?
    2) A PR battle with Starbucks.
    3) ???

    What have we gained through OC?
    1) As noted above, some angles on court cases. By goading places like Cali into banning everything, we improve the odds for getting a favorable ruling for the entire 2A community.
    2) Pistol OC is now normalized — at least with LEOs and dispatchers — in a good number of places. That’s pretty big. It means that in states with restrictive or delayed CWP processes, people who face a sudden threat (like an ex getting out of jail early) have an option for carry which is de facto and de jure legal until their CWP arrives. It means that if your cover garment reveals your gun, you’re good. It means that if you don’t want to throw on a cover garment while you walk the dog in the summer, you’re good.
    3) It has put the antis on the defensive. Now instead of railing against CCW, they are railing against OC and leaving CCW largely alone.
    4) We have gotten legislative progress by using OC as a bargaining chip. In SC, the pro-gun legislators threw Constitutional Carry, Open Carry, and Restaurant Carry at the wall to see what will stick. Restaurant Carry will likely get through next session, and it has never gotten through before. I suspect without the covering fire from Con Carry and OC, the antis could have bogged down Restaurant Carry and we’d have zero progress. Similar tactics can and should be used in other pro-gun states with bans on OC — ask for OC plus removal of a Gun Free Zone, and “settle” for a bite at the apple.
    5) OC gives us a defensive bastion in places like Colorado. The more we can run up the score in purple states, the more work the antis need to do roll back freedom.
    6) There is a morale effect for our folks from OCing. When OCing I’ve had several people who were CCWing strike up conversations. A common theme has been “I never knew other people did this.”
    7) OC helps people realize that all the nonsense about “printing” or “flashing” is frivolous. When I OC a conservative handgun in a conservative holster, most people never notice. I don’t worry about printing with a CCW anymore; the only people likely to notice are others with a CCW permit or maybe cops. I’ve moved to a larger carry gun which means more rounds and better accuracy. If I hadn’t OC’d, I’d likely still be worried about my printing to a ridiculous extent.

    On the whole I’d say I am happy for the OC movement. I have certainly benefited from being able to OC. While I don’t do it often, it is a good choice to be able to make. Any political benefits of OC are often secondary to me, though.

    Where things are going off the rails is the OC of long guns in contexts which are not appropriate. OC long guns at, say, a political rally protesting AWBs makes sense. OC long guns solely to make waves without a sophisticated media and legal plan to back it up is silly.

    But objectively, calling the OC activists “blights” is pretty silly. OC as a tactic has had some wins and some losses. I think the big fail is pushing to OC long guns in inappropriate contexts, but the core tactic of OC sidearms is still a useful arrow in the quiver. Direct your fire elsewhere.

    • Sebastian says:

      1) As noted above, some angles on court cases. By goading places like Cali into banning everything, we improve the odds for getting a favorable ruling for the entire 2A community.

      I agree with you here. Though that’s more of a happy accident. And only really happy if we win. What was also lost in CA was rural OC, however, which you could do loaded.

      2) Pistol OC is now normalized — at least with LEOs and dispatchers — in a good number of places. That’s pretty big. It means that in states with restrictive or delayed CWP processes, people who face a sudden threat (like an ex getting out of jail early) have an option for carry which is de facto and de jure legal until their CWP arrives. It means that if your cover garment reveals your gun, you’re good. It means that if you don’t want to throw on a cover garment while you walk the dog in the summer, you’re good.

      I think it largely has been successful in terms of making Law Enforcement understand the practice is legal (where it is legal) and there’s not much they can or should do about it. I think it hasn’t hurt anything with the general public is because it largely goes unnoticed, as there are not a lot of people doing it, and people aren’t that remarkably observant. And also when people do notice, many just make assumptions. There’s not much threatening about a holstered pistol for most people who don’t shit their pants on sight of a gun by default.

      3) It has put the antis on the defensive. Now instead of railing against CCW, they are railing against OC and leaving CCW largely alone.

      That’s because they perceive, correctly, they have a better chance of getting movement on gun control with respect to restricting open carry, and hope to use that as a basis for further victories.

      4) We have gotten legislative progress by using OC as a bargaining chip. In SC, the pro-gun legislators threw Constitutional Carry, Open Carry, and Restaurant Carry at the wall to see what will stick. Restaurant Carry will likely get through next session, and it has never gotten through before. I suspect without the covering fire from Con Carry and OC, the antis could have bogged down Restaurant Carry and we’d have zero progress. Similar tactics can and should be used in other pro-gun states with bans on OC — ask for OC plus removal of a Gun Free Zone, and “settle” for a bite at the apple.

      There have been cases where OC was the right tactic to use, and others where it at least was not a harmful tactic. That will not always be the case, and many OCers don’t give enough thought to it.

      5) OC gives us a defensive bastion in places like Colorado. The more we can run up the score in purple states, the more work the antis need to do roll back freedom.

      I don’t undertand how OC helps us in Colorado.

      6) There is a morale effect for our folks from OCing. When OCing I’ve had several people who were CCWing strike up conversations. A common theme has been “I never knew other people did this.”

      There is potentially a lot of value in spreading “I’m not alone,” in regards to making people understand that their views are normal and mainstream. That helps keep people from feeling they need to give in to fit in. But that is also a double edge sword, because then other side of that coin is people who don’t care if what they do is far far outside of societal norms because they care more about impressing their likeminded peers. OC has a lot of the flip side to that coin going on in their communities.

      7) OC helps people realize that all the nonsense about “printing” or “flashing” is frivolous. When I OC a conservative handgun in a conservative holster, most people never notice. I don’t worry about printing with a CCW anymore; the only people likely to notice are others with a CCW permit or maybe cops. I’ve moved to a larger carry gun which means more rounds and better accuracy. If I hadn’t OC’d, I’d likely still be worried about my printing to a ridiculous extent.

      I managed to get over the fear of printing without having to do OC, largely because after a while carrying you understand that people can’t really see it. But that’s one reason I want to keep OC legal, and am wary of pushing it too far. There’s issues with defining “concealed,” and in a lot of states that require concealment, even accidental exposure is enough to invite trouble from the law.

      I have no problem with OC as a tactic in the right circumstances, and I have no problem with people who casually open carry as part of their normal routine. THe problem is that I think the circumstances where it’s beneficial as a tactic are much much more narrow than most people open carrying are willing to admit. A lot of the benefits you mention an come about from mere casual OC, and don’t require putting activism or organization behind it, or open carrying some place just to make a point, or to get attention.

      • The Jack says:

        This ^^

        Specifically

        “I have no problem with OC as a tactic in the right circumstances, and I have no problem with people who casually open carry as part of their normal routine. THe problem is that I think the circumstances where it’s beneficial as a tactic are much much more narrow than most people open carrying are willing to admit. A lot of the benefits you mention an come about from mere casual OC, and don’t require putting activism or organization behind it, or open carrying some place just to make a point, or to get attention.”

    • Matthew Carberry says:

      Chris,

      The fire is being directed at limited targets, don’t misstate what is happening as that gives those who are being idiots cover.

      They cannot be allowed to “swim in the sea” of responsible OC-ers as the undecided public don’t make that distinction themselves, not with a hostile press ignoring the rational and displaying the idiots.

      OC of long guns has -no- possible upside that can be clearly expressed that hasn’t been shown to be false. It has only had negative public effects in a meaningful sense. Full stop. It should never be “lumped in” with handgun OC.

      Handgun OC has had mixed effect, but in those places where that effect was positive it was not victory dances at Starbucks that made the difference, but tailored activism with precise goals and/or normal carry by normal people acting normally not “rallying.”

      Also, using legalizing OC as a legislative bargaining chip is -not- the same as “OC activism”, it’s just politics. The activism, hopefully smart and well thought out, can only begin after it passes.

      • The Jack says:

        “They cannot be allowed to “swim in the sea” of responsible OC-ers as the undecided public don’t make that distinction themselves, not with a hostile press ignoring the rational and displaying the idiots.”

        What’s your solution? I’m being sincere here. Short of lobbying for a long gun oc ban there’s no legal solution.

        That leaves education and shame on our part.

        Also I think you’re assuming Chris from AK was defending “victory dances” or that he wasn’t advocating care and sense in activism.

        You might just be talking past him.

        • Matthew Carberry says:

          Oh, I know Chris wasn’t doing that, I was just reiterating that we can’t get anything accomplished without being ruthlessly precise on what exactly is being discussed. The term OC really shouldn’t be used at this point without modifiers given how stupid some of the actions taken under that general banner have been.

          And naming and shaming is exactly what I am promoting, not regulations. We can’t give these counter-productive morons the benefit of the doubt as the -only- logical result of what they do is in fact causing more restrictions to be emplaced.

          I want them off my side because they might as well be working for the other guys in actual effect.

          • Sebastian says:

            I was discussing this very thing the other day with someone who suggested we needed a term like “neckbeard” for these folks so it’s clear we’re not talking about people who OC sensibly.

            • The Jack says:

              Tam has 2nd Amendment Cosplay and terms like that.

              • Yeah, I was not going out and defending people who think it is a smart idea to finger-frick their heater in a Starbucks, strap on a Mare’s Leg, or carry their AR at the low ready through a mall.

                However, there are some folks commenting here and elsewhere who are stating their readiness to throw all OC off the life raft. Sorry, but that’s throwing the baby out with the bathwater.

                Like most tactics, OC has had some success, and some failure. The record as a political and social tactic is mixed. Overall I think the record is slightly positive, as the only real substantive losses (OC in Cali) were bound to happen at some point or another anyways, as soon as their legislature figured out that a right loophole existed. That is not the case in most states.

                My primary point is that OC is certainly not a complete dead end that should be banned. Remember, those who advocate criminalizing OC are basically advocating for having armed men (LEOs) come and arrest people like Rob Allen, disarming people who are traveling and don’t happen to have a CWP permit with appropriate reciprocity, and so on.

                The Starbucks thing was a minor mistep. It has zero legal impact, has minimal fallout, and lasted in the media for about one news cycle. I would wager that people not engaged in this debate on a daily basis didn’t even notice. That said, it is a useful “canary in the coal mine” event and we should seek to channel the energy of the 2A Cosplay folks who want to simulate Fallujah in their local yuppie eatery into something more productive.

                Bottom Line — We shouldn’t abandon the tactic altogether or blindly demonize everyone who OCs.

  7. Oh, and another bonus: OC has been used to get rid of gun free zones pre-empted by state laws. The most recent victory I tracked was in Oberlin, OH.

    We all benefit from OC’ers that have pushed localities to “put up or shut up” with regard to GFZs that should no longer exist under pre-emption.

    • Matthew Carberry says:

      The victory there is for pre-emption, not “OC.”

      OC was merely the tool that was chosen to enable the legal challenge to occur. A CCW would have worked equally well but would have required more talking and been less inherently visual.

      OC for OC sake wasn’t the point, it was already legal and required no “activism”, instead what was -already- accepted enabled narrowly tailored political use for a different limited goal.

  8. Zermoid says:

    As a practical point, you cannot ever get rid of OC completely without making hunting illegal. Could you imagine having to conceal your deer rifle until you were about to shoot? Or I have to conceal my 8″ barreled 44mag revolver?

    There will have to be left legal conditions where OC is legal for hunting at least.

    Daily carry I prefer to conceal my gun, but am glad OC is also legal in PA for those times that you accidentally expose the gun in public, not sure if anyone notices it but I wouldn’t want to be in legal trouble in case someone did, like folks in some states are.

    • Why “until you are ready to shoot”? I can see a big market for very large and oddly shaped hunting jackets!

    • Matthew Carberry says:

      Again, be precise.

      No one is seriously talking about “getting rid of OC” in the sense of all carry everywhere. What most of us are trying to make clear, and not allow to be hidden under the generic label “OC”, is that OC-ing -long guns-, in areas where there is nothing you can legally -do- with a long gun (and won’t ever be) except haul it around and look like a jackass in the eyes of people who we need on our side or at least neutral on gun issues, is asinine behavior.

  9. Glen says:

    The way legal strategists are attempting to reconcile these two traditions is to argue that there is a right to bear, or carry firearms for self-defense, but that the state has an interest in regulating the means by which one may wear a firearm for the purposes of not disturbing or alarming the public. In this theory, states could prohibit either concealed or open carry, but had to allow it in some manner, and could only regulate it in a manner that’s consistent with serving the government’s interest (in other words, they couldn’t regulate in a manner meant to discourage people from carrying generally). This is less than ideal…

    “Legal strategists” aren’t attempting to “reconcile… two traditions.” They’re simply arguing for a faithful interpretation of the Constitution. And the Constitution is silent on the almost infinite variations and situations in which rights may be exercised.

    No where does the Second Amendment mention manner of carry or how to wear a weapon. It simply protects a right “to bear” arms. The Heller Court subsequently interpreted that to mean “in case of confrontation… for self-defense.” This is entirely consistent with various lower courts ruling that the Second Amendment does not protect concealed or open carry.

    Idealism in policy in the exclusive province of the legislature.

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