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View Full Version : Court OK to Open Carry = No CCWs


dfletcher
01-07-2011, 3:04 PM
We've all read for quite a while the courts will eventually have to allow loaded open carry OR something very close to "shall issue" for CCW - but not both. I'd like to explore (and by explore I mean ask people who know more than me) why allowing one exludes or makes less likely the other will be constitutionally protected.

I hope this does not become an open carry/ccw debate or discussion, my question has nothing to do with which is better.

The premise I've read is that by allowing one a state will have met the burden of allowing (or not banning) carrying and can then ban or greatly restrict the other - why is that acceptable? For example - my Mom has a home in Andover, MA and another on the Cape. The police can't barge in at the Cape and assert "well you have the 4th at your home in Andover, you get it at one but not both".

I realize SCOTUS cited a few lower court cases that upheld open carry specifically, one to include a handgun, but in their decision I don't think they specified open or concealed and in Heller and McDonald spoke only of "carry".

Under open carry if I carry my 1918 BAR down Market St that would be protected, why should being able to do that cause me to forfeit CCW'ing my Detonics, for example?

Decoligny
01-07-2011, 3:13 PM
This is my layman's understanding and is off the top of my head.

With the 2nd Amendment, SCOTUS has recognized that we have the right to carry a firearm. They have left it up to the states to determine exactly how we are allowed to exercise the right.

SCOTUS has ruled that regulating the concealed carry of firearms is constitutional. Based on that, they have ruled that if a state prohibits the concealed carry of firearms that too would be constitutional, so long as Open Carry was still allowed.

The rulings so far have not said that you can not have both CCW and Open Carry, however, they have implied that if the state prohibits one, they must allow the other.

uyoga
01-07-2011, 3:14 PM
We've all read for quite a while the courts will eventually have to allow loaded open carry OR something very close to "shall issue" for CCW - but not both. I'd like to explore (and by explore I mean ask people who know more than me) why allowing one exludes or makes less likely the other will be constitutionally protected.

There is nothing in the constitution that forces any legislature to make the choice. In fact, not being mutually exclusive, any legislature can, by its own act, make both forms of self defense equally available to those who would avail themselves of either method.

Unfortunately, some legislatures, in their zeal to exercise "unfettered control over the actions of the citizens it is supposed to serve", decides on legislating the most intrusive choice: only one method.

IGOTDIRT4U
01-07-2011, 3:23 PM
This is my layman's understanding and is off the top of my head.

With the 2nd Amendment, SCOTUS has recognized that we have the right to carry a firearm. They have left it up to the states to determine exactly how we are allowed to exercise the right.

SCOTUS has ruled that regulating the concealed carry of firearms is constitutional. Based on that, they have ruled that if a state prohibits the concealed carry of firearms that too would be constitutional, so long as Open Carry was still allowed.

The rulings so far have not said that you can not have both CCW and Open Carry, however, they have implied that if the state prohibits one, they must allow the other.

Good answer.

GrizzlyGuy
01-07-2011, 3:27 PM
We've all read for quite a while the courts will eventually have to allow loaded open carry OR something very close to "shall issue" for CCW - but not both. I'd like to explore (and by explore I mean ask people who know more than me) why allowing one exludes or makes less likely the other will be constitutionally protected.

Nunn and Bliss. Patrick explained those pretty well here (http://www.calguns.net/calgunforum/showpost.php?p=5457546&postcount=190) and here (http://www.calguns.net/calgunforum/showpost.php?p=5489034&postcount=252).

dfletcher
01-07-2011, 3:33 PM
There is nothing in the constitution that forces any legislature to make the choice. In fact, not being mutually exclusive, any legislature can, by its own act, make both forms of self defense equally available to those who would avail themselves of either method.

Unfortunately, some legislatures, in their zeal to exercise "unfettered control over the actions of the citizens it is supposed to serve", decides on legislating the most intrusive choice: only one method.

True - a state like AZ or VT and others would say "do either, we don't care" with no impact on the other. I presume CA would fall into the "unfortunately" part - greatly restrict CCW while allowing open carry, but allowing all sorts of restrictions on open carry, "no guns" signs popping up all over the place.

dfletcher
01-07-2011, 3:40 PM
Nunn and Bliss. Patrick explained those pretty well here (http://www.calguns.net/calgunforum/showpost.php?p=5457546&postcount=190) and here (http://www.calguns.net/calgunforum/showpost.php?p=5489034&postcount=252).

Thanks - I was aware SCOTUS made the reference but did not know the depth of discussion. I noticed at the end of the comments Patrick mentioned its a question bound to be asked, so I suppose it will come up again. Perhaps we have to get closer to the definition of infringe before it is answered.

Kukuforguns
01-07-2011, 3:41 PM
Originally Posted by Decoligny
This is my layman's understanding and is off the top of my head.

With the 2nd Amendment, SCOTUS has recognized that we have the right to carry a firearm. They have left it up to the states to determine exactly how we are allowed to exercise the right.

SCOTUS has ruled that regulating the concealed carry of firearms is constitutional. Based on that, they have ruled that if a state prohibits the concealed carry of firearms that too would be constitutional, so long as Open Carry was still allowed.

The rulings so far have not said that you can not have both CCW and Open Carry, however, they have implied that if the state prohibits one, they must allow the other.Good answer.
The Supreme Court did not "rule" that prohibiting concealed carry is constitutional so long as open carry is allowed. The Court did note that prohibitions on the concealed carrying of firemars is long-standing and presumptively constitutional, so long as that prohibition does not interfere with the right to keep and bear arms. Courts that are paying attention should treat the Court's observation as something very close to a ruling ("although we are not bound by the Court's dicta, such dicta is customarily treated with great deference"). However, since the Court has not technically ruled on this issue, some courts (cough, Peruta, cough) can and will ignore the Court's comments.

IGOTDIRT4U
01-07-2011, 4:01 PM
The Supreme Court did not "rule" that prohibiting concealed carry is constitutional so long as open carry is allowed. The Court did note that prohibitions on the concealed carrying of firemars is long-standing and presumptively constitutional, so long as that prohibition does not interfere with the right to keep and bear arms. Courts that are paying attention should treat the Court's observation as something very close to a ruling ("although we are not bound by the Court's dicta, such dicta is customarily treated with great deference"). However, since the Court has not technically ruled on this issue, some courts (cough, Peruta, cough) can and will ignore the Court's comments.

Yeah, but his was more in layman's terms, cutting through the crap and getting to the point. :D

Either way, Heller left the door open for states to chose. CA wants one or the other, but not both. Licensing the right via CCW, gets them closer to where they want to be (as restrictive as legally possible), and still fits within Heller.

stix213
01-07-2011, 4:03 PM
True - a state like AZ or VT and others would say "do either, we don't care" with no impact on the other. I presume CA would fall into the "unfortunately" part - greatly restrict CCW while allowing open carry, but allowing all sorts of restrictions on open carry, "no guns" signs popping up all over the place.

I'd actually think California's legislature would go the other route and ban loaded open carry, while grudgingly accepting CCW. That's basically the law already, except for the whole "good cause" part

N6ATF
01-07-2011, 4:09 PM
Yeah, but his was more in layman's terms, cutting through the crap and getting to the point. :D

Either way, Heller left the door open for states to chose. CA wants one or the other, but not both. Licensing the right via CCW, gets them closer to where they want to be (as restrictive as legally possible), and still fits within Heller.

CA wants neither. Infringements upon infringements. The law is structured the way it is so you have to bribe the government (either according to a "fee" schedule or a maximum allowable campaign contribution) to allow you to exercise your fundamental human right to effective self-defense.

dfletcher
01-07-2011, 5:13 PM
I'd actually think California's legislature would go the other route and ban loaded open carry, while grudgingly accepting CCW. That's basically the law already, except for the whole "good cause" part

I think the CA legislature, given a choice, would of course limit each to the full extent allowed but am curious - can a law be crafted that allows open carry of handguns but ban open carry of long guns? I think CA would prefer allowing OC over CCW, so long as the arms involved are handguns onlyy. But if allowing a person to open carry a handgun means they're also allowed to open carry a long gun - I think the scale tips the other way. I don't think CA wants us walking around with Mini 14s and a pair of 30 round magazines.

I suppose the OC law could be written to allow for "firearms being concealed upon the person" and ban those that can not, but that rationale, I think, loses relevance when we're talking about OC.

diginit
01-07-2011, 6:20 PM
CA wants neither. Infringements upon infringements. The law is structured the way it is so you have to bribe the government (either according to a "fee" schedule or a maximum allowable campaign contribution) to allow you to exercise your fundamental human right to effective self-defense.

Which just goes to show that Ca. Government is CORRUPT and just wants money from it's citizens. CA has NO feelings what so ever for the citizen that gets killed during a robbery if they can't make a buck. They have no inclination that if we can defend ourselves legally, Crime will drop, Business profits will rise, and people will be safer. Will our legislators EVER get a clue????

GettoPhilosopher
01-07-2011, 6:57 PM
I'd actually think California's legislature would go the other route and ban loaded open carry, while grudgingly accepting CCW. That's basically the law already, except for the whole "good cause" part

Unless by begrudgingly accepting OC, they manage to back us in a corner where exercising that right is nigh impossible. For instance, GFSZ, businesses posting "no gun" signs, the police rushing out in force to make sure it's a legal gun anytime you walk anywhere....etc.

Crom
01-07-2011, 7:02 PM
I think the CA legislature, given a choice, would of course limit each to the full extent allowed but am curious - can a law be crafted that allows open carry of handguns but ban open carry of long guns?

Probably not. Rifles will be constitutionally protected, but it will require exploratory litigation to find out for sure. It's coming, we just need a few more key cases to be won.


I think CA would prefer allowing OC over CCW, so long as the arms involved are handguns only.

No. In California the legislature wants people to carry handguns concealed; that is the preferred method. They made that clear back in 1923. Remember last August? They tried to ban UOC!


But if allowing a person to open carry a handgun means they're also allowed to open carry a long gun - I think the scale tips the other way. I don't think CA wants us walking around with Mini 14s and a pair of 30 round magazines.

Anyone who walks around armed with a rifle is going to have some serious unwanted attention, and this is highly discouraged at this time.

The best writings I recall seeing on the subject of restricting the manner of carry were by Patrick-2 when he wrote about Nunn and Bliss, two of the four carry cases cited in Heller. Read his post here (http://www.calguns.net/calgunforum/showpost.php?p=5457546&postcount=190) and here. (http://www.calguns.net/calgunforum/showthread.php?p=5489034&post5489034)

The bottom line that I got out of it was that one form must be available; the legislature cannot extinguish the right.

OleCuss
01-07-2011, 7:32 PM
I sincerely hope that California chooses CCW as its form of carry. I'm quite convinced that Shall Issue CCW will be leveraged into allowing LOC as well.

I'm not so convinced that LOC could be leveraged to allow CCW - although that is pretty possible as well.

N6ATF
01-07-2011, 8:21 PM
Which just goes to show that Ca. Government is CORRUPT and just wants money from it's citizens. CA has NO feelings what so ever for the citizen that gets killed during a robbery if they can't make a buck. They have no inclination that if we can defend ourselves legally, Crime will drop, Business profits will rise, and people will be safer. Will our legislators EVER get a clue????

They have a clue. They want as much money and innocent blood on their hands as possible. The government is for protecting criminals at the absolute expense of the law-abiding.

RobG
01-07-2011, 8:47 PM
Kailfornia does not want any form of carry. But, if and when forced into allowing it, concealed will be the preferred method. The attempt to ban UOC had nothing to do with them wanting concealed carry. It was an attempt to ban a carry method by those who's only option is UOC.

resident-shooter
01-07-2011, 9:13 PM
LOC would be most preferred for both handguns and long guns. With no permit required. I would LOC Mac 10 with 1 point sling :D right past all of my anti gun neighbors.

JagerTroop
01-07-2011, 9:31 PM
Here's something to think about:

Heller and MacDonald guarantee the right of the individual to keep AND BEAR arms. If someone is denied a ccw by reasons other than being prohibited, wouldn't that automatically guarantee them an open carry permit? I know they are almost never issued, but if the state chooses to infringe via concealed carry, they must allow some form. Which only leaves exposed carry.

What say you?

OleCuss
01-08-2011, 3:37 AM
Here's something to think about:

Heller and MacDonald guarantee the right of the individual to keep AND BEAR arms. If someone is denied a ccw by reasons other than being prohibited, wouldn't that automatically guarantee them an open carry permit? I know they are almost never issued, but if the state chooses to infringe via concealed carry, they must allow some form. Which only leaves exposed carry.

What say you?

Your logic is good but legally a non-starter.



As it stands right now there isn't the case work to make that happen. Heller and McDonald were not extremely explicit about saying that any non-prohibited person must be allowed to carry their firearm either concealed or openly (the Court was not asked to do so).

So at this time the lower courts can disagree rather broadly about the implications of Heller and McDonald in regards to who is allowed to carry a firearm and the method in which that carry must be allowed.

You can file suit at this time saying that they must allow you to either CCW or LOC but right now the courts could pretty easily say, "Sure, you can carry CCW - just apply and get your permit". When you say that you can't get the CCW because the Sheriff won't issue - the court can contend that the Sheriff can exercise such discretion under current law. You lose unless you have a very good lawyer and an unusually good story/case and lots of money - and get lucky in judge/panel selection.

Once current cases remove much of the discretion and maybe get strict scrutiny - you might get the either/or situation you're talking about, but it'll likely be a statewide or maybe 9th Circuit-wide rule or case law (or maybe statute).

Again, I think your logic is good. The courts aren't likely to see it that way yet.

FWIW from a non-lawyer.

Decoligny
01-10-2011, 8:53 AM
Here's something to think about:

Heller and MacDonald guarantee the right of the individual to keep AND BEAR arms. If someone is denied a ccw by reasons other than being prohibited, wouldn't that automatically guarantee them an open carry permit? I know they are almost never issued, but if the state chooses to infringe via concealed carry, they must allow some form. Which only leaves exposed carry.

What say you?

The problem there is the fact that the "Open Carry Permit" is limited to counties with population under 200,000 and it is only good in the county of issue.

Patrick-2
01-10-2011, 9:29 AM
Here's something to think about:

Heller and MacDonald guarantee the right of the individual to keep AND BEAR arms. If someone is denied a ccw by reasons other than being prohibited, wouldn't that automatically guarantee them an open carry permit? I know they are almost never issued, but if the state chooses to infringe via concealed carry, they must allow some form. Which only leaves exposed carry.

What say you?

I say that you have no recognized right to bear arms in public. Neither federal nor state law allows it. Even in Shall-Issue states, the state is the one free to make laws for themselves when it comes to public carry (subject possibly to their own constitution but to no other).

All the arguments we make here are just that: arguments. They mean nothing, and hold no weight of law, until a court of reasonable jurisdiction agrees and agrees to apply them to questions of law.

I certainly do not mean the above to sound argumentative. I am just trying to expeditiously answer the question as directly as possible.

The path we (CalGuns/MSI/SAF/Others) are on is the best path to accomplish our goals: sue them into submission. It will take time but it will come.

But to the OP's question: the state can and will determine the "manner" of carry allowed. You can bet CA will attempt to keep that manner of carry "unloaded", but that will fail.

Loaded CCW will be the rule, if I had to guess.

yelohamr
01-10-2011, 10:34 AM
I wouldn't be surprised if CA allowed open carry with only two restrictions:

1. Handgun must be a revolver.

2. Only one round of ammo in possession while open carrying and it must be carried in shirt pocket.

The law will be known as, The Barney Fife Open Carry Act.

wildhawker
01-10-2011, 11:05 AM
I wouldn't be surprised if CA allowed open carry with only two restrictions:

1. Handgun must be a revolver.

2. Only one round of ammo in possession while open carrying and it must be carried in shirt pocket.

The law will be known as, The Barney Fife Open Carry Act.

This is actually really amusing. :D

wash
01-10-2011, 12:58 PM
If our legislators and judges think that RKBA is satisfied with one of two possible modes of carry, we will certainly wind up with only the one.

Winning "virtual shall issue" CCW will give every law abiding adult in the state the ability to carry a loaded weapon everywhere except "sensitive" places (and still UOC outside of GFSZs).

Winning LOC will give every law abiding adult in the state the ability to carry a loaded weapon in a few odd places that are more than 1,000 feet away from a school. It's a total waste of time in urban areas.

JagerTroop
01-10-2011, 1:08 PM
I wouldn't be surprised if CA allowed open carry with only two restrictions:

1. Handgun must be a revolver.

2. Only one round of ammo in possession while open carrying and it must be carried in shirt pocket.

The law will be known as, The Barney Fife Open Carry Act.

Lol. Only 1 flaw... concealed ammo = concealed weapon. You would need a '1 round pocket/lapel clip'. Similar to a shotgun side saddle, but only holds one round and you would wear it exposed.

Window_Seat
01-10-2011, 3:05 PM
...

Winning "virtual shall issue" CCW will give every law abiding adult in the state the ability to carry a loaded weapon everywhere except "sensitive" places (and still UOC outside of GFSZs).

Winning LOC will give every law abiding adult in the state the ability to carry a loaded weapon in a few odd places that are more than 1,000 feet away from a school. It's a total waste of time in urban areas.

Yes, until the State is forced to defend their de facto ban on loaded carry outside the home (without a license), while (at the same time) being made to define their idea of sensitive places, especially when the imaginary 1000' circle is not part of that definition according to Heller, yes? It won't pass muster.

Erik.

wash
01-10-2011, 3:15 PM
I agree, but the path to CCW is shorter and easier and does not preclude the possibility of getting both eventually.

SimpleCountryActuary
01-10-2011, 7:07 PM
Open carry would be a kick. I could carry a Colt New Service revolver in 45 Colt in a belt holster and my Winchester 1894 carbine in a shoulder sheath.

We might in a few months end up with a polite society.

Best!