Open carry in the United States

Open carry in the United States
A man openly carrying a handgun in a Burger King in Eagle, Colorado.

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 firearms while they go about their daily business, has seen an increase in the U.S. in recent years.[1][2] This has been marked by a number of organized events intended to increase the visibility of open carry and public awareness about the practice.[3]

Proponents of open carry point to history and statistics, noting that criminals usually 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.[4] 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,[5][6][7] but it is not yet clear if this represents just a short-term trend.[8][9]

The gun rights community has been mixed in its response. Alan Gottlieb of the Second Amendment Foundation and the NRA have been cautious in expressing support,[10] while special-interest groups such as the aforementioned OpenCarry.org and GeorgiaCarry.org, state-level groups such as the Texas State Rifle Association (TSRA), and certain national groups such as the Gun Owners of America (GOA) have been more outspoken in favor of the practice.

Open carry is strongly opposed by gun control groups such as the Brady Campaign and the Coalition to Stop Gun Violence.[11][12]

Contents

Jurisdictions in the United States

In the United States, the laws concerning open carry vary by state and sometimes by municipality.

Open carry laws of loaded handguns (OpenCarry.org)[13]
  Gold Star Open Carry State
  Open Carry Friendly State
  Licensed Open Carry State
  Non Permissive Open Carry State
  Rural Open Carry State

Definitions

Open carry
The act of publicly carrying a loaded firearm on one's person 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. Typical examples are 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 firearms. 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. Open carry is lawful on foot and in a motor vehicle. Shown on the map to the right as "Gold Star" states; the term carries a pro-gun bias, as gun-control advocacy groups like the Brady Center generally give these states very low "scores" on their own ratings systems.
Licensed open carry states
A state has passed full preemption of all firearms laws. They permit open carry of a handgun to all non-prohibited citizens once they have been issued a permit or license. Open carry of a handgun is lawful on foot and in a motor vehicle.
Anomalous open carry states
In these states, open carry of a handgun is generally lawful, but the state may lack preemption or there may be other significant restrictions. Shown in the map legend as "Open Carry Friendly" states; the term is questionable as the limitations and/or lack of pre-emption means that certain of these states are, in their judicial system and law enforcement societies, not very "friendly" towards the practice.
Non-permissive open carry states
In these states, open carry of a handgun is not lawful, or is only lawful under such a limited set of circumstances that public carry is prohibited. Such limited circumstances may include when hunting, or while traveling to/from hunting locations, while on property controlled by the person carrying, or for lawful self-defense.

Six states and the District of Columbia fully prohibit the open carry of handguns. On the other side, twelve states permit open carry of a handgun without requiring the citizen to apply for any permit or license. Thirteen states require some form of permit (often the same permit as allows a person to carry concealed), and the remaining seventeen states, though not prohibiting the practice in general, do not preempt local laws or law enforcement policies, and/or have significant restrictions on the practice, such as prohibiting it within the boundaries of an incorporated urban area. Illinois allows open carry in unincorporated areas and private property only.

As of August, 2009, four states that currently restrict open carry as a remnant of the post-Civil war Reconstruction era[14] (Texas, South Carolina, Oklahoma and Arkansas) are considering making it again legal.[11][15] A bill was drafted in the Texas Legislature for the 2009 session, but did not make it out of committee; proponents such as OpenCarry.org and the Texas State Rifle Association hope to reintroduce similar legislation in the 2011 session.

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." However, Scalia continued, "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."[16]

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 advocates argue that 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. Open carry advocates argue that, by exclusion, open carrying of arms may not be legislatively controlled in these states. But this is not settled law.[citation needed]

Section 1.7 [17] of Kentucky's state constitution only empowers the state to enact laws prohibiting "concealed carry".

Open carry demonstrations and events

  • May 2, 1967 openly armed members of the Black Panther Party marched on the California State capitol[18] in opposition to the Mulford Act prohibiting the public carrying of loaded firearms. The act had been prompted by the Panthers patrolling with shotguns.
  • 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.[19]
  • 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.[20]
  • 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, in certain localities, of any semiautomatic weapon holding more than 20 rounds or a shotgun that holds more than seven rounds, without a concealed carry permit.[21]
  • 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.[22]
  • 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.[23]
  • 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.[24]
  • 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.[25]
  • 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.[26]
  • 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 and allows carry of loaded magazines and speedloaders.[5]
  • On August 11, 2009, William Kostric, a New Hampshire resident, Free State Project participant, and former member of We The People [2]'s Arizona Chapter,[27] 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!".[28]
  • 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.[29] While the Secret Service was "very much aware" of these individuals, Arizona law does not prohibit open carry.[30] No crimes were committed by these protesters, and no arrests were made.[31] 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."[32]
  • On January 30, 2010 Members of Michigan Open Carry were eating at a local Ponderosa Steakhouse in Lansing, Michigan when the local police department came and forced the citizens to leave.[33] A person rumored to be a United States Marine was carrying an AR-15 at this open carry event. A brief verbal argument ensued between the leader of the open carry group and the Lansing Police Department. No arrests were made; some of the law enforcement officers at the scene were given reprimands[citation needed] for their actions arising from the incident.
  • In May 2010, Jesus C. Gonzalez was arrested for homicide in a shooting which occurred while carrying. Gonzalez was involved in two prior arrests for disorderly conduct, based on his open carry practice. He filed a lawsuit claiming fourth and fourteenth amendment violations. His suit was dismissed, and is currently on appeal. Gonzalez was convicted on lesser charges for the homicide.[34]

Federal Gun Free School Zones Act of 1995

The Federal Gun Free School Zone Act of 1995 limits where a person may legally carry a firearm by generally prohibiting carry within one-thousand (1000) feet of the property-line of any K-12 school in the nation with private property excluded.[35] A State-issued permit to carry may exempt a person from this restriction depending on the laws of the State, and most issuing States qualify for this exception. However, according to BATFE the exception in Federal law is only applicable to permit holders while in the State that physically issued their permit, and does not exempt people with out-of-state permits, even when their permit is recognized through State reciprocity agreements. BATFE letter explaining reciprocity of CCW permit holders and how it applies to Gun-Free School Zones.

See also

References

  1. ^ "Buzz and bullets: Gun fans cheer Starbucks' policy - Yahoo! News". http://news.yahoo.com/s/ap/us_guns___coffee. Retrieved 2010-03-11. "Even in some "open carry" states, businesses are allowed to ban guns in their stores. dushe 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." [dead link]
  2. ^ O'Connell, Vanessa; Jargon, Julie (2010-03-04). "Starbucks, Other Retailers Dragged Into Gun-Control Dispute - WSJ.com". The Wall Street Journal. http://online.wsj.com/article/SB10001424052748704541304575099433593489048.html. 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." 
  3. ^ "Gun-rights activists to descend on downtown Palo Alto - San Jose Mercury News". http://www.mercurynews.com/breaking-news/ci_14524201. 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."" 
  4. ^ Pierce, John (April 15, 2010). "Why 'Open Carry' Gun Laws Work". US News and World Report. http://www.usnews.com/articles/opinion/2010/04/15/why-open-carry-gun-laws-work.html/. Retrieved October 26, 2011. 
  5. ^ a b Jurjevics, Rosa (July 15, 2009). "They Carry Guns". San Diego Reader. http://www.sandiegoreader.com/news/2009/jul/15/cover/. Retrieved October 26, 2011. 
  6. ^ Riccardi, Nicholas (2008-06-07). "Have gun, will show it". Los Angeles Times. http://articles.latimes.com/2008/jun/07/nation/na-opencarry7. Retrieved 2010-05-20. 
  7. ^ "Louisville's Bring Your Firearms to Church Day". Time. 2009-06-25. http://www.time.com/time/nation/article/0,8599,1906765,00.html. Retrieved 2010-05-20. 
  8. ^ Mensching, Colleen (August 7, 2009). "Police officers eyes opening to 'open carry'". North County Times. http://www.nctimes.com/news/local/sdcounty/article_2157ecea-907b-5e29-8c80-3a6538572eb5.html. Retrieved October 26, 2011. 
  9. ^ "Gun Movement Encourages Display Of Weapons". NPR. July 2, 2008. http://www.npr.org/templates/transcript/transcript.php?storyId=92126421. Retrieved October 26, 2011. 
  10. ^ Urbina, Ian (2010-03-07). "Locked, Loaded, and Ready to Caffeinate". The New York Times. http://www.nytimes.com/2010/03/08/us/08guns.html. 
  11. ^ a b Leinwand, Donna (2009-02-11). "4 States, Among Last Holdouts, Eye Open-Carry Gun Laws". USA Today. http://www.usatoday.com/news/nation/2009-02-11-guns_N.htm. Retrieved 2010-05-20. 
  12. ^ Stuckey, Mike (August 25, 2009). "Guns near Obama fuel 'open-carry' debate". MSNBC. http://www.msnbc.msn.com/id/32492783/ns/us_news-life/. Retrieved October 26, 2011. 
  13. ^ "Open Carry of Loaded Handgun". OpenCarry.org. http://www.opencarry.org/opencarry.html. Retrieved June 6, 2010. 
  14. ^ Hardy, David (November 14, 2007). "Study of racist roots of gun control". Of Arms and the Law. http://armsandthelaw.com/archives/2007/11/study_of_racist.php. Retrieved October 26, 2011. 
  15. ^ Reece, Kevin (June 24, 2008). "Group wants to carry handguns in plain view". TXCN.com. http://www.txcn.com/sharedcontent/dws/txcn/houston/stories/khou080624_tj_gunlaws.368369a1.html. Retrieved October 26, 2011. 
  16. ^ "District of Columbia, et al., v. Dick Anthony Heller. 554 U.S. ____ (2008)". United States Supreme Court. 2008-06-26. http://www.supremecourt.gov/opinions/07pdf/07-290.pdf. Retrieved 2010-02-19. 
  17. ^ 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.
  18. ^ """How to Stage a Revolution""". Xroads.virginia.edu. 1967-05-02. http://xroads.virginia.edu/~UG01/barillari/pantherintro.html. Retrieved October 26, 2011. 
  19. ^ State GOP Convention/ Tense moment as protesters clash with delegate/ Controversy surrounding execution comes to convention.Houston Chronicle. Retrieved on 10-01-2009.
  20. ^ "The Morning Journal - Armed and shopping in Vermilion Ohio". http://morningjournal.com/articles/2003/12/21/top%20stories/10695259.txt. 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." 
  21. ^ "Guns Worn In Open Legal, But Alarm Va. (washingtonpost.com)". The Washington Post. 2004-07-15. http://www.washingtonpost.com/wp-dyn/articles/A50416-2004Jul14.html. 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." 
  22. ^ "'Gun owners miffed by SLC airport's confusing no-firearms signs"
  23. ^ "Order and Judgment in the United States District Court for the Southern District of Georgia Augusta Division
  24. ^ "West Allis man not guilty in open carry gun case - JSOnline". http://www.jsonline.com/news/crime/39722082.html. 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." 
  25. ^ "Police Stop Man For Carrying Gun Out In Open". http://www.wisn.com/cnn-news/19235901/detail.html. 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." 
  26. ^ Farley, Josh (May 31, 2009). "They're Breaking the Law — and Getting Away With It". Kitsap Sun. http://www.kitsapsun.com/news/2009/may/31/theyre-breaking-the-law-8212-and-getting-away-it/. Retrieved October 26, 2011. 
  27. ^ Walsh, Joan (August 12, 2009). "Who was that gun-toting anti-Obama protester?". Salon. http://www.salon.com/news/opinion/joan_walsh/politics/2009/08/12/william_kostric/. Retrieved October 26, 2011. 
  28. ^ McCullagh, Declan (August 11, 2009). "Gun-Toting Man Draws Scrutiny Outside Obama Town Hall". CBS News. http://www.cbsnews.com/blogs/2009/08/11/politics/politicalhotsheet/entry5235445.shtml. Retrieved 31 January 2010. 
  29. ^ [1][dead link]
  30. ^ "Men tote assault rifles at Obama event". CNN. http://politicalticker.blogs.cnn.com/2009/08/17/men-tote-assault-rifles-at-obama-event/. Retrieved 2010-05-20. 
  31. ^ Martinez, Edecio (August 18, 2009). "Man Carrying Loaded Assault Rifle Attends Obama Protest". CBS News. http://www.cbsnews.com/8301-504083_162-5248889-504083.html. Retrieved October 26, 2011. 
  32. ^ "Right to Protest ... With a Gun?". Foxbusiness.com. May 6, 2011. http://www.foxbusiness.com/search-results/m/25952317/right-to-protest-with-a-gun.htm. Retrieved October 26, 2011. 
  33. ^ "Lansing Ponderosa Encounter - Raw footage Police detaining and trying to illegally obtain ID's Pt 1". 1/30/2010. http://www.youtube.com/watch?v=YilytOvgbrU. 
  34. ^ "Shooting suspect was strident in support of open carry efforts". http://www.jsonline.com/news/crime/94015669.html. Retrieved October 26, 2011. 
  35. ^ "BATFE letter threatening prosecution of CCW permit holders." (PDF). http://www.handgunlaw.us/documents/batf_school_zone.pdf. Retrieved 2010-11-08. 

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