Open carry in the United States: Difference between revisions
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Encouraged by groups like [[OpenCarry.org]], [[GeorgiaCarry.org]] and some participants of the [[Free State Project]], open carry has seen a revival in recent years.<ref name="sandiegoreader.com"/><ref>{{cite news| url=http://articles.latimes.com/2008/jun/07/nation/na-opencarry7 | work=Los Angeles Times | title=Have gun, will show it | first=Nicholas | last=Riccardi | date=2008-06-07 | accessdate=2010-05-20}}</ref><ref>{{cite news| url=http://www.time.com/time/nation/article/0,8599,1906765,00.html | work=Time | title=Louisville's Bring Your Firearms to Church Day | date=2009-06-25 | accessdate=2010-05-20}}</ref> As of 2010, it is not yet clear if this represents a [[sea change]], or just a short-term trend.<ref>http://www.nctimes.com/news/local/sdcounty/article_2157ecea-907b-5e29-8c80-3a6538572eb5.html</ref><ref>http://www.npr.org/templates/transcript/transcript.php?storyId=92126421</ref> Open carry is strongly opposed by gun control groups such as the [[Brady Campaign]] and the [[Coalition to Stop Gun Violence]].<ref name="usatoday.com"/><ref>http://www.msnbc.msn.com/id/32492783/ns/us_news-life/</ref> Proponents of open carry point to history and statistics, noting that it is criminals who actually conceal their weapons: The 2006 FBI study "Violent Encounters: A Study of Felonious Assaults on Our Nation's Law Enforcement Officers" by Anthony Pinizzotto revealed that criminals carefully conceal their firearms, and they eschew the use of holsters. In layman's terms, this report tells us that, statistically speaking, citizens who are openly wearing a properly holstered handgun and are willing to subject themselves to the intense public and law enforcement scrutiny that open carry brings with it are not criminals.<ref>http://www.usnews.com/articles/opinion/2010/04/15/why-open-carry-gun-laws-work.html/</ref> |
Encouraged by groups like [[OpenCarry.org]], [[GeorgiaCarry.org]] and some participants of the [[Free State Project]], open carry has seen a revival in recent years.<ref name="sandiegoreader.com"/><ref>{{cite news| url=http://articles.latimes.com/2008/jun/07/nation/na-opencarry7 | work=Los Angeles Times | title=Have gun, will show it | first=Nicholas | last=Riccardi | date=2008-06-07 | accessdate=2010-05-20}}</ref><ref>{{cite news| url=http://www.time.com/time/nation/article/0,8599,1906765,00.html | work=Time | title=Louisville's Bring Your Firearms to Church Day | date=2009-06-25 | accessdate=2010-05-20}}</ref> As of 2010, it is not yet clear if this represents a [[sea change]], or just a short-term trend.<ref>http://www.nctimes.com/news/local/sdcounty/article_2157ecea-907b-5e29-8c80-3a6538572eb5.html</ref><ref>http://www.npr.org/templates/transcript/transcript.php?storyId=92126421</ref> Open carry is strongly opposed by gun control groups such as the [[Brady Campaign]] and the [[Coalition to Stop Gun Violence]].<ref name="usatoday.com"/><ref>http://www.msnbc.msn.com/id/32492783/ns/us_news-life/</ref> Proponents of open carry point to history and statistics, noting that it is criminals who actually conceal their weapons: The 2006 FBI study "Violent Encounters: A Study of Felonious Assaults on Our Nation's Law Enforcement Officers" by Anthony Pinizzotto revealed that criminals carefully conceal their firearms, and they eschew the use of holsters. In layman's terms, this report tells us that, statistically speaking, citizens who are openly wearing a properly holstered handgun and are willing to subject themselves to the intense public and law enforcement scrutiny that open carry brings with it are not criminals.<ref>http://www.usnews.com/articles/opinion/2010/04/15/why-open-carry-gun-laws-work.html/</ref> |
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The movement has also received |
The movement has also received support from within the wider gun rights community, with outspoken gun rights proponent [[Alan Gottlieb]] of the [[Second Amendment Foundation]] expressing concern and distancing himself from infringements on open or concealed carry. This grass roots movement has been described as another segment of gun owners exercising a "means of peaceably packing firearms for personal protection."<ref name="urlDemocratic Hypocrisy Reigns Citizen-Times.com">{{cite news |url=http://m.citizentimes.com/apps/pbcs.dll/article?AID=2010100423035 |title=Democratic Hypocrisy Reigns Citizen-Times.com}}</ref> |
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== Jurisdictions in the United States == |
== Jurisdictions in the United States == |
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Revision as of 12:49, 13 July 2010
 | The examples and perspective in this article may not represent a worldwide view of the subject. (May 2010) |
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.
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][2] In the last decade, this has been marked by an number of organized events intended to increase the visibility of open carry and public awareness about the practice.[3] Critics of open carry, on the other hand, have raised concerns about right-wing extremism and the threat of armed revolt against the U.S. government.[4][5][6]
Encouraged by groups like OpenCarry.org, GeorgiaCarry.org and some participants of the Free State Project, open carry has seen a revival in recent years.[7][8][9] As of 2010, it is not yet clear if this represents a sea change, or just a short-term trend.[10][11] Open carry is strongly opposed by gun control groups such as the Brady Campaign and the Coalition to Stop Gun Violence.[12][13] Proponents of open carry point to history and statistics, noting that it is criminals who actually conceal their weapons: The 2006 FBI study "Violent Encounters: A Study of Felonious Assaults on Our Nation's Law Enforcement Officers" by Anthony Pinizzotto revealed that criminals carefully conceal their firearms, and they eschew the use of holsters. In layman's terms, this report tells us that, statistically speaking, citizens who are openly wearing a properly holstered handgun and are willing to subject themselves to the intense public and law enforcement scrutiny that open carry brings with it are not criminals.[14]
The movement has also received support from within the wider gun rights community, with outspoken gun rights proponent Alan Gottlieb of the Second Amendment Foundation expressing concern and distancing himself from infringements on open or concealed carry. This grass roots movement has been described as another segment of gun owners exercising a "means of peaceably packing firearms for personal protection."[15]
Jurisdictions in the United States
In the United States, the laws concerning open carry vary by state and sometimes by municipality.
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 carrying a firearm. 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.
Categories of law
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[17] (Texas, South Carolina, Oklahoma and Arkansas) are considering making it again legal.[12][18]
Constitutional implications
Open carry has never been ruled out as a right under the Second Amendment of the U.S. Constitution by any court. In the majority opinion in the case of District of Columbia v. Heller (2008), Justice Antonin Scalia wrote concerning the entirety of the elements of the Second Amendment, "We find that they guarantee the individual right to possess and carry weapons in case of confrontation.", with the obligatory caveat "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." While Justice Scalia did not comment on the practice of open carry specifically, clearly it is one way to "carry weapons in case of confrontation."
Forty-three states' constitutions recognize and secure the right to keep and bear arms in some form, and none of those prohibit the open carrying of firearms. Five state constitutions provide that the state legislature may regulate the manner of carrying or bearing arms, and none rule out 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. This is not explicitly stated and is therefore academically debatable, however no movement has ever been advanced to date to seriously question it.
Quite like many things a free people are free to engage in, open carry is legal in most states due to there being no specific laws or ordinances prohibiting it. For instance, one may wear a purple shirt in most places not because there is a law saying that it is legal to do so, but because there is no law saying it is illegal to do so. [19]
Section 1.7 [20] of Kentucky's state constitution only empowers the state to enact laws prohibiting "concealed carry".
Open carry demonstrations and events
- On June 16, 2000, the New Black Panther Party along with the National Black United Front and the New Black Muslim Movement protested the death sentencing conviction of Gary Graham, by openly carrying shotguns and rifles at the Texas Republican National convention in Houston, Texas. No offenses, arrests, or harm related to open carry was reported.[21]
- 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. No offenses, arrests, or harm related to open carry was reported.[22]
- The legality of open carry of certain firearms in Virginia was reaffirmed after several 2004 incidents 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. [23]
- 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.[24]
- 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.[25]
- 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 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.[26]
- 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.[27]
- 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.[28]
- 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.[7]
- On August 11, 2009, William Kostric, a New Hampshire resident, Free State Project participant, and former member of We The People[1]'s Arizona Chapter,[29] was seen carrying a loaded handgun openly in a holster while participating in a rally outside 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!". No offenses, arrests, or harm related to open carry was reported.[[30]
- 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. No offenses, arrests, or harm related to open carry was reported.[[31] While the Secret Service was "very much aware" of these individuals, Arizona law does not prohibit open carry.[32] No crimes were committed by these protesters, and no arrests were made.[33] 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."[34]
See also
- Concealed carry
- Gun politics
- Gun politics in the US
- Gun laws in the United States (by state)
- Gun-free zone
References
- ^ "Buzz and bullets: Gun fans cheer Starbucks' policy - Yahoo! News". Retrieved 2010-03-11.
Even in some "open carry" states, businesses are allowed to ban guns in their stores. And some have, creating political confrontations with gun owners. But Starbucks, the largest chain targeted, has refused to take the bait, saying in a statement this month that it follows state and local laws and has its own safety measures in its stores.
- ^ "Starbucks, Other Retailers Dragged Into Gun-Control Dispute - WSJ.com". Retrieved 2010-03-11.
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". Retrieved 2010-03-11.
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."
- ^ Kennedy, Maev (2009-08-12). "Protester William Kostnic at Obama healthcare town hall in New Hampshire carried 9mm pistol - guardian.co.uk". The Guardian. London. Retrieved 2010-03-08.
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.
- ^ Rich, Frank (2009-08-23). "Op-Ed Columnist - The Guns of August - NYTimes.com". The New York Times. Retrieved 2010-03-08.
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). Retrieved 2010-03-08.
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.
- ^ a b http://www.sandiegoreader.com/news/2009/jul/15/cover/
- ^ Riccardi, Nicholas (2008-06-07). "Have gun, will show it". Los Angeles Times. Retrieved 2010-05-20.
- ^ "Louisville's Bring Your Firearms to Church Day". Time. 2009-06-25. Retrieved 2010-05-20.
- ^ http://www.nctimes.com/news/local/sdcounty/article_2157ecea-907b-5e29-8c80-3a6538572eb5.html
- ^ http://www.npr.org/templates/transcript/transcript.php?storyId=92126421
- ^ a b Leinwand, Donna (2009-02-11). "4 States, Among Last Holdouts, Eye Open-Carry Gun Laws". USA Today. Retrieved 2010-05-20.
- ^ http://www.msnbc.msn.com/id/32492783/ns/us_news-life/
- ^ http://www.usnews.com/articles/opinion/2010/04/15/why-open-carry-gun-laws-work.html/
- ^ "Democratic Hypocrisy Reigns Citizen-Times.com".
- ^ "Open Carry of Loaded Handgun". OpenCarry.org. Retrieved June 6, 2010.
- ^ http://armsandthelaw.com/archives/2007/11/study_of_racist.php
- ^ http://www.txcn.com/sharedcontent/dws/txcn/houston/stories/khou080624_tj_gunlaws.368369a1.html
- ^ The Tenth Amendment of The US Constitution: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
- ^ Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.
- ^ State GOP Convention/ Tense moment as protesters clash with delegate/ Controversy surrounding execution comes to convention.Houston Chronicle. Retrieved on 10-01-2009.
- ^ "The Morning Journal - Armed and shopping in Vermilion Ohio". Retrieved 2010-03-09.
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)". The Washington Post. 2004-07-15. Retrieved 2010-03-15.
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". Retrieved 2010-03-15.
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". Retrieved 2010-03-10.
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.
- ^ http://www.kitsapsun.com/news/2009/may/31/theyre-breaking-the-law-8212-and-getting-away-it/
- ^ http://www.salon.com/news/opinion/joan_walsh/politics/2009/08/12/william_kostric/
- ^ McCullagh, Declan (August 11, 2009). "Gun-Toting Man Draws Scrutiny Outside Obama Town Hall". CBS News. Retrieved 31 January 2010.
- ^ http://www.google.com/hostednews/ap/article/ALeqM5hctDBUKMR4V-lGBrEQcYNO0ooBQAD9A4TG402
- ^ "Men tote assault rifles at Obama event". CNN. Retrieved 2010-05-20.
- ^ "Man carrying assault weapon attends Obama protest"
- ^ "Right to Protest ... With a Gun?" Fox Business online edition