Difference between revisions of "Open carry"
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Today in the United States, the laws vary from state to state regarding open carry of handguns. | Today in the United States, the laws vary from state to state regarding open carry of handguns. | ||
Latest revision as of 10:06, 13 June 2013
In the United States, open carry is shorthand terminology for "openly carrying a firearm in public", as distinguished from concealed carry, where firearms cannot be seen by the casual observer. It is also called "open display."
The practice of open carry, where gun owners openly carry handguns while they go about their daily business, has seen an increase in the U.S. in recent years.[1] In the last decade, this has been marked by an ever increasing number of organized events intended to increase the visibility of open carry and public awareness about the practice.[2] Critics of open carry (read: panic-mongering gun grabbers), on the other hand, have dusted off and trotted out the tired boogeyman of right-wing extremism and the threat of armed revolt against the U.S. government.[3][4][5]
Encouraged by libertarian groups like OpenCarry.org, GeorgiaCarry.org, and some participants of the Free State Project, open carry has seen a revival in recent years.[6][7][8] As of 2010, left wing shills and media fence-sitters are still trying to claim that it is not yet clear if this represents a sea change, or just a short-term trend.[9][10] Open carry is strongly opposed by gun control groups such as the Brady Campaign and the Coalition to Stop Gun Violence.[11][12] Surprise, surprise.
The movement has also received criticism from within the mainstream gun rights community, with outspoken gun rights proponent Alan Gottlieb of the Second Amendment Foundation expressing concern and distancing himself. This grass roots movement has been described as a wild card, serving a similar role to the National Rifle Association as the Tea Party movement serves to the Republican Party.
— Locked Loaded and Ready to Caffeinate - Gun Enthusiasts Make a Point - NYTimes.com
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[edit] Jurisdictions in the United States
In the United States, the laws concerning open carry are an unfortunately mind-boggling patchwork that can vary from state to state and sometimes even from town to town.
[edit] Definitions
Open carry - the act of publicly carrying a firearm in plain sight.
Plain sight - broadly defined as not being hidden from common observation; varies somewhat from state to state.
Preemption - in the context of open carry: the act of a state legislature passing laws which limit or eliminate the ability of local governments to regulate the possession or carrying of firearms.
Prohibited persons - people prohibited by law from publicly carrying a firearm in plain sight. These can (but not necessarily, as state laws differ) include but are not limited to: minors, felons, those convicted of a misdemeanor of domestic violence, those found to be addicted to alcohol or drugs, and those who have been involuntarily committed to a mental institution.
[edit] Categories of Law
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Today in the United States, the laws vary from state to state regarding open carry of handguns.
The categories are defined as follows:
Permissive Open Carry States - A state has passed full preemption of all firearms laws. They permit open carry to all non-prohibited citizens without permit or license. Also open carry is lawful on foot and in a motor vehicle.
Licensed Open Carry States - A state has passed full preemption of all firearms laws. They also permit open carry to all non-prohibited citizens once they have been issued a permit or license. Also open carry is lawful on foot and in a motor vehicle.
Anomalous Open Carry States - In these states, open carry is generally lawful, but the state may lack preemption or there may be other significant restrictions.
Non-Permissive Open Carry States - In these states, open carry is not lawful, or is only lawful under a limited set of circumstances, such as when hunting, or while traveling to/from hunting locations, while on property controlled by the person carrying, or for lawful self-defense.
Seven states and the District of Columbia fully prohibit the open carry of firearms. Additionally, there are eleven states which permit open carry without requiring the citizen to apply for any permit or license.
As of August, 2009, four states that currently restrict open carry as a remnant of the post-Civil war Reconstruction era[13] (Texas, South Carolina, Oklahoma and Arkansas) are considering making it again legal.[11][14]
[edit] Constitutional Implications
Open carry has never been recognized as right under the Second Amendment of the U.S. Constitution by any federal court. In the majority opinion in the case of District of Columbia v. Heller (2008), Justice Antonin Scalia wrote, "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Justice Scalia did not, however, comment on the practice of open carry specifically.
43 states' constitutions recognize and secure the right to keep and bear arms in some form, but none specifically refer to the open carrying of firearms. Five state constitutions provide that the state legislature may regulate the manner of carrying or bearing arms, but none mention open carry specifically. Nine states' constitutions indicate that the concealed carrying of firearms may be regulated and/or prohibited by the state legislature which could be considered, by exclusion to indicate that the open carrying of arms may not be legislatively controlled in these states, though this is not explicitly stated and is therefore debatable.
[edit] Open Carry Demonstrations and Events
- In 2003, gun rights supporters in Ohio used a succession of Open Carry "Defense Walks" attempting to persuade the Governor to sign concealed carry legislation into law.[15]
- The legality of open carry of certain firearms in Virginia was reaffirmed after several 2004 incidents (prime examples of what can and does happen when firearm legislation becomes foolishly complex) in which citizens openly carrying firearms were confronted by local law enforcement. The Virginia law prohibits the open carry of any semiautomatic weapon holding more than 20 rounds or a shotgun that holds more than seven rounds, without a concealed carry permit. [16]
- In 2008, Clachelle and Kevin Jensen, of Utah, were photographed together openly carrying handguns in the Salt Lake City International Airport near a "no weapons" sign. The photo led to an article in The Salt Lake Tribune about the airports preempted "no weapons" signs. After a few weeks, the city removed the unlawful signs.[17]
- In 2008, Staff Sergeant Zachary Nelson Mead was detained in Richmond County, Georgia for openly carrying a firearm. The firearm was seized by Deputy Kadum Townsend. The organization GeorgiaCarry.org filed a lawsuit on behalf of Staff Sergeant Mead. The court declared that the seizure was a violation of the Fourth Amendment to the United States Constitution, awarded court costs and attorney fees to Mead, and dismissed the remaining charges with prejudice.[18]
- In 2008, Brad Krause of West Allis, Wisconsin was arrested by police for alleged disorderly conduct while openly carrying a firearm while planting a tree on his own property. A court later acquitted him of the disorderly conduct charge, observing in the process that in Wisconsin there is no law dealing with the issue of unconcealed weapons.[19]
- On April 20, 2009, Wisconsin Attorney General J.B. Van Hollen issued a memorandum to district attorneys stating that open carry was legal and in and of itself does not warrant a charge of disorderly conduct. Milwaukee police chief Ed Flynn instructed his officers to take down anyone with a firearm, take the gun away, and then determine if the individual could legally carry it until they could make sure the situation is safe.[20]
- On May 31, 2009, Washington OpenCarry members held an open carry protest picnic at Silverdale's Waterfront Park, a county park. Attendees openly carried handguns in violation of posted regulations prohibiting firearms at the park. Kitsap County Sheriff's deputies were on hand, in part to explain to the public why they weren't enforcing the park's posted gun ban. Washington state law allows the open carrying of firearms and specifically preempts local ordinances more restrictive than the state's. Kitsap County has left its parks gun ban on the books and continues to publicly post it with other park regulations. Because the law is not practically enforceable, there has been confusion among gun owners as to whether open carry will be tolerated.[21]
- In July 2009, an open carry event organized by OpenCarry.org took place at Pacific Beach, San Diego, California, where citizens carrying unloaded pistols and revolvers were subjected to Section 12031(e) inspections of their firearms on demand by police officers. The officers were obviously well-briefed on the details of the law, which allows Californians to openly carry only unloaded guns, but also allows carry of loaded magazines and speedloaders.[6]
- On August 11, 2009, William Kostric, a New Hampshire resident, was seen carrying a loaded handgun openly in a holster while participating in a protest at a town hall meeting hosted by President Barack Obama at Portsmouth High School in New Hampshire. Kostric never attempted to enter the school, but rather stood some distance away on the private property of a nearby church, where he had permission to be. He held up a sign that read, "It's Time to Water the Tree of Liberty!".[22]
- On August 16, 2009, "about a dozen" people were noted by police to be openly carrying firearms at a health care rally across the street from a Veterans of Foreign Wars Convention in the Phoenix Convention Center, where President Barack Obama was giving an address. While the Secret Service was "very much aware" of these individuals, Arizona law does not prohibit open carry.[23] No crimes were committed by these protesters, and no arrests were made.[24] In an interview with Fox News, commentator James Wesley Rawles characterized the Phoenix protesters as "merely exercising a pre-existing right". When he was asked about open carry, "but...without a permit?" Rawles opined, "We have a permit--it is called the Second Amendment."[25]
- On September 13, 2009, at an open carry demonstration in a public park in South Haven, Michigan, Jonathan Wayne Sager negligently discharged his firearm into the pavement of the park's parking lot. Wayne, 28, was the charged with reckless use of a firearm, a misdemeanor offense.[26]
[edit] See also
- Concealed carry
- Gun politics
- Gun politics in the US
- Gun laws in the United States (by state)
- Gun-free zone
[edit] References
- ↑ "Starbucks, Other Retailers Dragged Into Gun-Control Dispute - WSJ.com" The "open carry" movement, in which gun owners carry unconcealed handguns as they go about their everyday business, is loosely organized around the country but has been gaining traction in recent months. Gun-control advocates have been pushing to quash the movement, including by petitioning the Starbucks coffee chain to ban guns on its premises. Anti-gun activists gathered at the original Starbucks in Seattle to push retailers like the coffee chain to ban customers from openly carrying guns, WSJ's Nick Wingfield reports. Businesses have the final say on their property. But the ones that don't opt to ban guns—such as Starbucks—have become parade grounds of sorts for open-carry advocates.
- ↑ Gun-rights activists to descend on downtown Palo Alto - San Jose Mercury News Today, a group of gun-rights advocates will exercise their Second Amendment rights by congregating in the plaza with unloaded firearms in plain view. Bay Area members of the national "open carry" movement said they chose the city in part because it is one of the few in the state that has a municipal ban on gun possession. Don't expect any '60s-style confrontations with authorities, however. Palo Alto officials said Friday they will not attempt to enforce the city's ordinance, since it is superseded by state law allowing people to carry guns openly as long as they're not loaded. "We're not going to try to fight state law on this," said Palo Alto police Lt. Sandra Brown. "We're just going to let it happen."
- ↑ Protester William Kostnic at Obama healthcare town hall in New Hampshire carried 9mm pistol - guardian.co.uk The phrase "time to water the tree of liberty" - a reference to a famous quotation from Thomas Jefferson, "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants" - is also frequently used by a right wing group called Stormfront , motto White Pride World Wide.
- ↑ Op-Ed Columnist - The Guns of August - NYTimes.com This month the Southern Poverty Law Center, the same organization that warned of the alarming rise in extremist groups before the Oklahoma City bombing, issued its own report. A federal law enforcement agent told the center that he hadn’t seen growth this steep among such groups in 10 to 12 years. “All it’s lacking is a spark,” he said. This uptick in the radical right predates the health care debate that is supposedly inspiring all the gun waving.
- ↑ US Department of Homeland Security - Rightwing Extremism, Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment, Risk assessment report. The possible passage of new restrictions on firearms and the return of military veterans facing significant challenges reintegrating into their communities could lead to the potential emergence of terrorist groups or lone wolf extremists capable of carrying out violent attacks.
- ↑ 6.0 6.1 Rosa Jurjevics, "They Carry Guns" San Diego Reader, 7/15/09
- ↑ Nicholas Riccardi, Have gun, will show it - Los Angeles Times, June 07, 2008. Owners wear their weapons openly to prove that normal folks carry arms too -- even if other people shoot strange looks at them.
- ↑ Louisville's Bring Your Firearms to Church Day Time.com Thursday, Jun. 25, 2009
- ↑ Police officers eyes opening to 'open carry' North County Times, August 7, 2009
- ↑ Gun Movement Encourages Display Of Weapons The Bryant Park Project, National Public Radio, July 2, 2008
- ↑ 11.0 11.1 Donna Leinwand, "4 states, among last holdouts, eye open-carry gun laws" USA Today 2/11/2009
- ↑ Mike Stuckey "Guns near Obama fuel ‘open-carry’ debate - Second Amendment activists divided by public displays of firearms" msnbc.com Tues., Aug 25, 2009
- ↑ Hardy, David, Study of racist roots of gun control, 14 November 2007
- ↑ Kevin Reece, Group wants to carry handguns in plain view Houston News Tuesday, June 24, 2008
- ↑ The Morning Journal - Armed and shopping in Vermilion Ohio About 70 people, who want a concealed-carry bill passed by the Ohio Legislature signed into law, showed up yesterday with pistols at their sides for a Vermilion open carry shopping day, which was organized by Ohioans For Concealed Carry.
- ↑ Guns Worn In Open Legal, But Alarm Va. (washingtonpost.com) Perez said an officer spoke with the men, then took their guns and charged them with possession of a firearm in a public place. Virginia law 18.2-287.4 expressly prohibits "carrying loaded firearms in public areas. But the second paragraph of the law defines firearms only as any semiautomatic weapon that holds more than 20 rounds or a shotgun that holds more than seven rounds -- assault rifles, mostly, Van Cleave said. Regular six-shooters or pistols with nine- or 10-shot magazines are not "firearms" under this Virginia law.
- ↑ "'Gun owners miffed by SLC airport's confusing no-firearms signs"
- ↑ "Order and Judgment in the United States District Court for the Southern District of Georgia Augusta Division
- ↑ West Allis man not guilty in open carry gun case - JSOnline Municipal Judge Paul Murphy said he had reviewed several state statutes and court cases related to the right to keep and bear arms. "There being no law whatsoever dealing with the issue of an unconcealed weapon or the so-called open carry is why we're here today," Murphy said. In the end, he determined Krause's actions did not rise to disorderly conduct and found him not guilty.
- ↑ Police Stop Man For Carrying Gun Out In Open He said many departments are asking questions about how to deal with people openly carrying firearms. He said it may end up being a community-by-community, case-by-case issue fraught with the potential for danger. "Now, with open carry, which is legal, there may be no training. I could hand you my handgun, you could walk down the street carrying it with no training whatsoever. To me, there is a lot more danger now with people thinking, 'I have the right to carry it so I'm going to carry it, and not have the training,'" Banaszynski said. Guns are still prohibited in schools and any private property owner, including businesses, can ban firearms.
- ↑ Josh Farley "They're Breaking the Law — and Getting Away With It" Kitsap Sun May 31, 2009
- ↑ McCullagh, Declan Gun-Toting Man Draws Scrutiny Outside Obama Town Hall CBS News August 11, 2009
- ↑ Men tote assault rifles at Obama event CNN Politics, August 17th, 2009
- ↑ "Man carrying assault weapon attends Obama protest"
- ↑ "Right to Protest ... With a Gun?" Fox Business online edition
- ↑ Kalamazoo man at gun-rights picnic at South Haven beach charged after inadvertently firing weapon A Kalamazoo man attending a gun-rights picnic at South Haven’s South Beach has been charged with reckless use of a firearm after his weapon discharged, police said Thursday. Jonathan Wayne Sager, 28, was unloading his semiautomatic handgun and preparing it for transport after the Sept. 13 picnic when it discharged at 5:44 p.m., said Chief Rod A. Somerlott of the South Haven Police Department. A warrant authorized Wednesday by the Van Buren County Prosecutor’s Office charged Sager with reckless use of a firearm, which is a misdemeanor, police said.
