Open Carry Bans Unconstitutional?

BlackPR · July 3rd, 2008, 01:00 PM

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?

tinkerinWstuff · July 3rd, 2008, 01:05 PM

They also said "in the home"

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

Kerbouchard · July 3rd, 2008, 01:05 PM

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

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.

PaulJ · July 3rd, 2008, 01:14 PM

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.

BlackPR · July 3rd, 2008, 01:31 PM

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."

matiki · July 3rd, 2008, 01:38 PM

Quote:

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.

BlackPR · July 3rd, 2008, 02:03 PM

Quote:

Originally Posted by matiki

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.

goawayfarm · July 3rd, 2008, 02:41 PM

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.)

Quote:

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".

Quote:

.......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

Quote:

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?

Quote:

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

Quote:

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:

Quote:

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:

Quote:

....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.)

Redneck Repairs · July 3rd, 2008, 02:58 PM

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 .

Hopyard · July 3rd, 2008, 03:09 PM

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.

July 3rd, 2008, 01:00 PM	#1
BlackPR Senior Member Join Date: Nov 2007 Location: Lakewood Colorado Posts: 580	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? __________________ Truth and falsehood are both whatever and simultaneously not so, rather than not. Colorado Gun Law FAQ's: http://rmgo.org/faq/

July 3rd, 2008, 01:14 PM	#4
PaulJ Member Join Date: May 2008 Location: Florida Posts: 343	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. __________________ I never considered a difference of opinion in politics, in religion, in philosophy, as cause for withdrawing from a friend. (Thomas Jefferson)

July 3rd, 2008, 01:31 PM	#5
BlackPR Senior Member Join Date: Nov 2007 Location: Lakewood Colorado Posts: 580	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." __________________ Truth and falsehood are both whatever and simultaneously not so, rather than not. Colorado Gun Law FAQ's: http://rmgo.org/faq/

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July 3rd, 2008, 01:05 PM	#2
tinkerinWstuff Member Join Date: Jun 2008 Location: Colorado Front Range Posts: 271	They also said "in the home" I wouldn't be too optimistic that the ruling will go that far.

July 3rd, 2008, 02:58 PM	#9
Redneck Repairs VIP Member Join Date: Nov 2005 Location: Colorado Posts: 5,141	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 .

July 3rd, 2008, 03:09 PM	#10
Hopyard Senior Member Join Date: Jun 2006 Location: College Station Posts: 1,178	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.