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Open Carry Bans Unconstitutional?

3K views 41 replies 14 participants last post by  Rock and Glock 
#1 ·
I've been doing some detailed readings of Heller to see how it might apply to current laws in my state. Of interest is their analysis of the phrase "keep and bear arms". I was curious as to whether or not they would view "keep and bear" as one right or two.

The court concluded: "Putting all of
these textual elements together, we find that they guarantee
the individual right to possess and carry weapons in case of confrontation."


By my reading, this renders as unconstitutional any state laws that prohibit the open carry of handguns, such as the City and County of Denver. They specifically said in the ruling that it didn't apply to conceal carry, but clearly DO apply it to open carry.

Thoughts?
 
#2 ·
They also said "in the home"

I wouldn't be too optimistic that the ruling will go that far.
 
#3 ·
I agree with your conclusion...we'll have to see if the courts who take the cases agree.

There will definitely be a lot of cases in the future.



Heller's case was specifically about guns in his home. That was the first step. It makes sense that the opinion would concentrate on defending yourself in your home because that was what Heller's case was about.

It's merely a stepping stone. A large step to be sure, but only the first of many.
 
#4 ·
as others said, Heller was only about owning a gun in your home. However, the way the opinion is written, the judges essentially waved a big pole saying "we think you should bring a suit to allow us to extend this to open carry".

On the other hand, there is still the fact that the 2A doesn't appear to apply to state law. So in some states, in the end you may be able to only carry in the post office ;-). I wonder if they will rent PO Boxes for gun storage.
 
#5 ·
The ruling specifically only overturned heller, which was about "the home"... However, it also specifically interpreted "keep and bear arms" which would be subject to stare decisis in any future rulings. So the interpretation of those terms are, for all intents and purposes, now written in stone. Any legal challenge to an open carry ban would surely quote Heller. So even though the specific ruling only overturned one law. Other areas must evaluate whether the ruling itself renders their laws unconstitutional, as we have seen some communities already doing.

It seems clear from reading the heller decision that the court views open carry as a constitutional right. Their analysis of "bear arms" was NOT restricted to "in the home". The only limitation was on "sensitive areas" such as schools or government buildings, which they specifically mention but are obviously not "in the home."
 
#6 ·
2. 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
: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale of
arms. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.
Pp. 54–56
The back door for regulation - it's open.
 
#7 ·
Sort of. They made compelling arguments and cited references about "bearing arms"... including rulings where laws banning open carry were overturned and laws banning conceal carry had not.

This is important. What the court has said is that Keep and Bear are two different rights. What this means in real-person-speak is that you have the right both to own and to carry. They specifically use the word "carry"...

That was one of those little things that I was really hoping to see in this ruling. The way they define "bear" indicates we do have a right to carry except in "sensitive areas" and why mention sensitive areas of their interpretation of bear was being applied "only to the home"?

Of course, what constitutes a sensitive area is something that will have to be hammered out over time, but the examples they give are schools and government buildings -- airports probably qualify as well.

They did not rule on the level of scrutiny any law should meet and that's a disappointment. So back to your point, the door is open, but the premise has been set. The government has to make its case on what a "sensitive area" is and what level of scrutiny THEY think will apply. Those will be future areas for supreme court rulings.
 
#8 ·
Here's the relative parts: ( I know it's kind of long, but if you are really interested in this topic, please read ALL of it.....While you are at it, everybody should read the entire decision.....it is well worth your time. Every time I read thru it, something else catches my attention.)

Held:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
The last sentence above is very telling. It only gives "within the home" as an one example. It does NOT say "ONLY IN THE HOME".

.......the right to “keep Arms” as an individual right unconnected with militia service.........“Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else. p.9
At the time of the founding, as now, to “bear” meant to “carry.” p.10
THIS NEXT PART I FIND IRONIC.....anybody else notice why?
When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose— confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate: 'wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” p.10


We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” 8 It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms bearing right, for example, as a recognition of the natural right of defense “of one’s person or house”—what he called the law of “self preservation.”
The only part that will hurt our cause is how this next part gets interrupted:
2. 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: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
The anti's will say....'See there can be limits!'. They will attempt to make more & more places 'sensitive'. They will also try make more weapons 'dangerous and unusual weapons'.

Another glimmer of good I think everybody has missed is in this part:
....or laws imposing conditions and qualifications on the commercial sale of arms....
This opens up our ability to trade & sell firearms amongst ourselves....it is only limiting COMMERCIAL SALES....it doesn't address or limit PRIVATE SALES! (So much for the gun-show loophole.)
 
#42 ·
THIS NEXT PART I FIND IRONIC.....anybody else notice why?


When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose— confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate: 'wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” p.10



We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” 8 It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms bearing right, for example, as a recognition of the natural right of defense “of one’s person or house”—what he called the law of “self preservation.”
The only part that will hurt our cause is how this next part gets interrupted:




Sure, the Majority Opinion cited Ginsberg in Muscarello v. United States, 524 U. S. 125 (1998). Ginsberg was in the Minority in Heller.

Interestingly, I find the question of "Incorporation" in the 14th quite ironic. The conservative Justices tend to want any arguments for incorporation very narrow, even though in this case it would be contrary to their opinion in Heller (e.g. contravention), whereas the more liberal Justices tend to interpret the 14th more broadly, thus in contradiction of their minority opinion in Heller.

That would be an interesting dance to watch. Maybe Chicago, Illinois, SF, California, Boston, or MA will step up to the plate!
 
#9 ·
The thing that occurred to me is that in the majority opinion the importance of the second was compared to the first . This leads me to think that the current court at least feels its a strict scrutiny right . Now dont mistake me this does not make me think that the court will mandate ccw everywhere or everywhen . It does make me think that states and lessor governments will have to recognize the " bear " issue . Now they may be able to do this thro OC or CC but i feel there is a good case that the pistol can be taken out of the home and carried . You may have to pay a fee and get a ccw or other permit ( remember this case did not address registration in any manner since as majority stated that sinse it was not argued it was held for now to be ok ) but imho either concealed carry or open carry or both will become the " law of the land " if we as gun rights advocates choose our case as carefully as heller ( parker ) was chosen . There is no question however it will be back to at least the local circuit court to clear the issue up , and that is if no one appeals .
 
#10 ·
I too have been puzzled by the rapidity with which numerous commentators have said the decision was narrow, applied only to DC, and only to the home.

I don't see any of that in the opinion proper.

The rub of course is that the unconstitutional laws existing will still be enforced until judges make it plain that they won't allow the charges to stick. And, methinks there will be plenty of rationalizations about why the ruling doesn't apply to this situation or that, until a few cases wend their way back up through the various appellate courts. In other words, someone is either going to have to be the guinea pig and get arrested, or someone will have to sue to stop enforcement.

My guess is that district judges and higher are going to try to narrow the scope of the ruling; just as D.C. police and mayor have already attempted to do at least verbally--e.g., their claim that it only allows revolvers not pistols.
 
#11 ·
I too have been puzzled by the rapidity with which numerous commentators have said the decision was narrow, applied only to DC, and only to the home.
Well, because the only immediate effect is to guarantee the relief sought by Heller (and, by extension, by Parker, & al) in the original District Court case.

As PaulJ pointed out, the actual text of the opinion is what will be used to bring suit to overturn other gun laws. It is already happening. Even though Scalia's decision only affects a particular law in a federal enclave, it is being used as the basis for suits in Chicago, San Francisco, and other places.

Similarly, there is a basis in that decision to try to attack open carry prohibitions, assault weapon bans, restrictions on private transfers, capricious may-issue enforcement, and onerous (de facto ban) registration requirements.

Even D.C. is not settled. They think they'll throw out the pre-1976 requirement for registration and leave all the rest of their crap in place. They want an 8-week approval period for registrations. They want semi-auto handguns to be ineligible for registration. They want to zone gun shops out of existence, meaning no BATFE approved FFLs, meaning no place in D.C. to buy a gun and nobody to accept transfers from out of the District. All of that, every single bit of it, fails to pass any test of reasonableness laid out in Heller.

But D.C. is going to go kicking and screaming one step at a time, and it is going to take a while. So it's no surprise we won't get other immediate victories out of this, but they will come. Of that I am as near to certain as can be. We won this round, and the gun-banners have a much, much harder hill to climb from here on out.
 
#12 ·
I too have been puzzled by the rapidity with which numerous commentators have said the decision was narrow, applied only to DC, and only to the home.

I don't see any of that in the opinion proper.
The decision is not " narrow " in the sense that it by verbage limits its self to DC . It is " narrow " in the sense that the 2nd is one of the rights that does not share " incorporation " where by it cannot be further limited by states . Now not to say it should be further limited , or can or cannot be further limited , but it has not been found to be " incorporated " yet so it may be . However on a good side the majority opinion specifically compared the 2nd to the 1st . and this leads this old non lawyer to believe that the current setting court considers it to come under strict scrutiny . Either Chicago or SF will likely sort out the " incorporation issue " assuming both dont just fold ( as anti gun rights folk wanted DC to do before the SCOUS verdict on Heller ) . Both Willimette and Mortan Grove IL have folded tents and stated they have tabled illegal gun laws . They did this for pure $$ issues as they cannot afford to fight the claims that the NRA and others may bring . Note tho they called " safe " they did not do away with the law , they just ceased enforcement in hopes no one will persue suit on THEM. No gun grabber wants to be responsible for " incorporation " where by Heller applys nationwide and from it we see the " common usage doctrine that throws out not only semi auto pistol bans , but imho any homeland defense rifle ( by anti assault weapon ) ban that could be written . Under " common use " I dont believe we win a thing on class 3 weapons ( call it machine guns or AOW regestrations ) . However we win a lot on rolling back defacto bans such as CA and other stats have . In My state as many others we can own any semi auto of any mag capacity . If i an residents of most states can do this , does this not rise to the " common use " standard ? What we need first off is someone " stupid " enough ( kinda like dc ) to take this the full ride on a states rights basis . Incorporation from any federal court is then almost assured . SCOUS says that the 2nd is an individual right , no lower court will be allowed to question that . Now its up to us to pick good cases to bring to define such things as incorporation , scope , and scrutiny . I for one wont live long enough see the 2nd sorted out , however for the first time since we became a nation it is a right for you and me idependant of milita service . I know this not because its common sense , rather because the SCOUS said so . Incorporation is a given, its gonna happen , it just takes arrogance as the folk in Chi town show when they defend the indefensible . Dont forget that for all the US history the SCOUS never took up a direct challenge . In fact the Bradys bragged that no gun law had ever been turned over due to the second . Even miller ( a much quoted decision ) only had one side testify and IMHO from what i read they expected to loose if they had even token resistance . Incorporation is a given, we just need someone stupid enough to make it an issue . The same as far as i can see any kind of " assault weapons " ban .
 
#13 ·
Maybe I'm a pessimest but it worries me to have the scope of the ruling pushed too far too fast when it was only a 5-4 ruling. Torques me off when one of the disenting judges was quoted in the media as saying he didn't believe the 2A gave americans the right to have a loaded handgun on their nightstand. To that I say, "What business is it of his or anyone's elses what I do in the bedroom of my own house?"

Because of that statement and the 5-4 ruling, I doubt that this could now stand an Open Carry challenge in the federal court with these judges. If we don't get another constitutionaly conservitive judge on the bench.....
 
#24 · (Edited)
No. The Constitution is a Federal document. It applies only to the Federal government unless the states are specifically mentioned such as in Article 1 Section 10

Section 10 - Powers prohibited of States

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
The Bill of Rights was never intended to (and they do not) apply to the states, they are prohibitions against actions by the Federal government. Of course, the rights enumerated are an excellent blueprint that many states have incorporated into their respective constitutions. But the Bill of Rights and the Second Amendment does not apply to the states, no matter how many misinterpret the Fourteenth Amendment to imply the wishful notion of incorporation or the recent Heller opinion.
 
#30 ·
Evidently, not everyone gives total credence to Professor Fairman:

ON MISREADING JOHN BINGHAM

I have no idea who this author is, or if his "street cred" is as great as Professor Fairman's. My very cursory look at this (I'll need to read it fully later) does indicate that Professor Fairman is not the only person with an opinion on this issue, and perhaps not the only one that matters?
 
#31 ·
Indeed. his has been a topic of debate and extremely devisive for almost 150 years. I find Fairman's argument compelling so I espouse that view. I am also a staunch state's rights advocate. I respect the other opinion, as well. Bingham certainly said on a number of occassions that he intended the Amendment to encompass the Bill of Rights. However, the language of the Amendment does not support that view. Also, the way it was presented to the states is inconsistent with that interpretation. What state would vote to have their own sovereign laws overturned? The Fourtenth Amendment is to extend due process to the newly freed slaves. That's it.

Professor Fairman is criticized by some but that does not detract from his work. Supreme Court Justice Frankfurter completely agreed with Fairman and atypical of retired Justices, he often spoke about the Fourteenth in his later years.

The one thing most everyone agrees on is that the Founders never intended the Bill of Rights to be enforced on the states. And I will always defer Constitutional questions to the intent of the Founders.

I do agree that the states should pass laws that prohibit state's governments from infringing on our God given rights. But they are not compelled to do so.
 
#36 ·
What I see as having been virtually ignored is that as stated numerous times, (in numerous places) the 2nd Amendment does not give us the right to keep and bear arms, any more than any state law or state constitution does. The 2nd amendment merely protects that right. Whether or not any state law or constitution says so, we still have the right to self-defense, and as an extension, the tools necessary to exercise those rights.

We still have the right to keep and bear arms, even without the 2nd Amendment. Just as we also have the right to free speech, freedom of religion, trial by a jury of our peers, the right to not testify against ourselves.

But it seems that government isn't the only entity that has forgotten those rights. Many of us, have forgotten them also. And this is in spite of all the amendments and the Constitution.

How many of us have run into US law enforcement officers, under the mistaken impression that if there isn't a law saying we can do something, then it must be illegal? Where do they get this idea? Where does anyone get the idea that a right not granted by law, doesn't exist?

It still exists, but if we don't properly exercise our rights, we will lose them, by ignorance, as well as by legislation. If for no other reason than this, we must press on for open carry, and eliminate any bans that exist.

States rights should not usurp the rights of the individual citizen. The idea of free, elected governments is to serve the citizens, not rule them. If we are ruled, then we are not free. If we are not free, we are not citizens, we are slaves.
 
#38 ·
I'm glad this thread has been allowed to continue. Based on the debate continueing here, I'm going to have to review my own opinion on the Bill of Rights and how that reflects on States Rights. Another reason which I didn't see mentioned in the 4 pages of this thread:

Scalia himself cites several state's constitutions (or bill or rights) in his decision as having given their citizens the right to bear arms so how could the Federal 2A be the right of a state run militia and not that of the people?
 
#40 ·
Actually, Justice Scalia cites that the 2nd Amendment as well as several state constitutions "protect" the right to keep and bear arms. The right to keep and bear arms is generally recognized as one of the natural, or "God given" rights.

This is what we must always keep in mind. The reason being, any right "given" by law, can be taken away by law. What is not given by government, cannot be taken away. Not without a fight anyway.

Some may argue that our rights have already been taken away. In some states, this is likely to be correct. But that's mostly because, "We, the people" let the government do this. To a degree, I think this is what the Open Carry movement is all about, taking back those rights.

Whether you think OC is a good idea or not, doesn't matter. It is our right, and we need to see that it continues to be protected.
 
#41 ·
Gregg Jackson articulates the message very well. It is on a different subject (no less controversial) but a very good read. Those who pray to the courts to defend and enforce their views are praying to a false idol, Second Amendment included. The Court must be stripped of their perceived power and return the real power to where it belongs: THE PEOPLE

http://www.townhall.com/Columnists/...same_sex_marriage_illegal_in_all_fifty_states
 
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