Open Carry Bans Unconstitutional?

This is a discussion on Open Carry Bans Unconstitutional? within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; 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 ...

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Thread: Open Carry Bans Unconstitutional?

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    Senior Member Array BlackPR's Avatar
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    Open Carry Bans Unconstitutional?

    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?
    The facts are indisputable. There is more data supporting the benefits of Conceal Carry than there is supporting global warming. If you choose ignorance, in light of all the evidence, in order to bolster your irrational fear of guns, you are a greater threat to society than any gun owner.

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    Distinguished Member Array tinkerinWstuff's Avatar
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    They also said "in the home"

    I wouldn't be too optimistic that the ruling will go that far.

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    VIP Member Array Kerbouchard's Avatar
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    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.

    Quote Originally Posted by tinkerinWstuff View Post
    They also said "in the home"

    I wouldn't be too optimistic that the ruling will go that far.
    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.
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    Senior Member Array PaulJ's Avatar
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    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.
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    Senior Member Array BlackPR's Avatar
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    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."
    The facts are indisputable. There is more data supporting the benefits of Conceal Carry than there is supporting global warming. If you choose ignorance, in light of all the evidence, in order to bolster your irrational fear of guns, you are a greater threat to society than any gun owner.

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    VIP Member Array matiki's Avatar
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    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.
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    Senior Member Array BlackPR's Avatar
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    Quote Originally Posted by matiki View Post
    The back door for regulation - it's open.
    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.
    The facts are indisputable. There is more data supporting the benefits of Conceal Carry than there is supporting global warming. If you choose ignorance, in light of all the evidence, in order to bolster your irrational fear of guns, you are a greater threat to society than any gun owner.

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    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 “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: '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.)
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    VIP Member Array Redneck Repairs's Avatar
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    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 .
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    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.

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    Quote Originally Posted by Hopyard View Post
    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.
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    VIP Member Array Redneck Repairs's Avatar
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    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 .
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    Distinguished Member Array tinkerinWstuff's Avatar
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    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.....

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    This is where my poor brain gives up

    Quote Originally Posted by kazzaerexys View Post
    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. .
    This is where my poor and no doubt legally naive brain gives up.

    Reasoning from an analogous situation: In the 1950s the SC said, with respect to a suit, that there must be school integration for fairness; Or, later, that abortions must be permitted.

    Now, those suits of course involved specific school districts and specific plaintiffs.

    What I don't understand is why those were immediately applicable to the entire nation, whereas this present result--that there are individual rights to keep and bear arms-- does not apply nationwide.

    My poor brain doesn't understand it.

    I've seen and heard comments that somehow this would need to apply indirectly through the 14th ; I can't understand why a further suit needs to be brought.

    Anyway, I am sure brighter and more informed heads understand these issues, but to me, the plain wording and the ruling seem to indicate an almost unregulated right to keep and bear unless you are a felon or a nut job.

    I thought Scalia made this rather plain.

    (And I am no fan of his, but that's what it looked like he wrote for the majority.)

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    Quote Originally Posted by Hopyard View Post
    ...the ruling seem to indicate an almost unregulated right to keep and bear unless you are a felon or a nut job...
    Those were examples, not a list. I think that's where the concern comes from. To say that regulation is acceptable, with some examples but not a guideline might as well have been the same as saying, "including but not limited to". I'm not saying I agree with that, but it's possible (if not likely) that one could successfully argue that in another court.
    "Wise people learn when they can; fools learn when they must." - The Duke of Wellington

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