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.
