Is open-carry protected by the Second Amendment? (I'm looking at you, Texas!)

[awkx]

The Supreme Court decision in DC v. Heller [pdf] mentioned, in passing, that concealed-carry restrictions likely do not infringe the right protected by the Second Amendment. However, it notably said nothing about the open carrying of a firearm. If the right referred to by the Second Amendment is understood in the same way in which it was understood in 1791, then it seems that open-carry is protected, even if the carrier is unlicensed.

I wonder: Can we get a favorable court ruling on this? It seems that Texas might be an ideal place to take this to court:

• Texas currently forbids all open-carry by ordinary citizens.
• Texas's RKBA provision is weaker than the Second Amendment (it says that the legislature may regulate the manner of carrying).
• The Fifth Circuit is generally conservative (i.e., not anti-gun).

Also, if we win in Texas, then we'll get a favorable decision on the incorporation issue in the Fifth Circuit [map].

 

[dogrunner]

I noted that as well. Guess we in Florida and Texas need to initiate a 'test' case.............In Florida it's only a misdemeanor with a minimal penalty.....what's the cost for open to a Texan?

 

[General Geoff]

I know that in PA, at least, the state supreme court has held that open carry is a constitutionally protected right (PA constitution, that is). I hope the federal one is ruled the same way.

 

[redneckrepairs]

IMHO and INAL but my reads is that you " may " have the right to bear arms to include pistols . By the same read any state that provides for a provision to bear pistols is in the free , it matters not if it is via ccw and oc is legal , or it is oc and ccw is illegal , it matters not as things stand how they regulate it , but IMHO they cannot bar it . Now the they cannot bar carry is admittedly wishful thinking right now , but to my read is logical if the case is carefully chosen and brought before a circuit court . Time will tell , but as i read it no part of the Heller case defined just what is " bear arms " So i would say that any state may allow open carry and prohibit concealed , or the opposite as well . However i think there is a clear case that a state cannot bar carry altogether, other than in special places such as .gov buildings , schools , secure zones of airports ect.

 

[Solo Flyer]

I certainly hope there is a case for OC now.Not only is it outright illegal in 6 states ,its only realistic in about a dozen others
The only way to change this is through the legal process.I would not OC all the time, but it sure would be nice to have the option.

 

[DKSuddeth]

I see only two options to get a judicial decision for open carry.

1) have someone arrested for open OR concealed with no license, then use Murdock v. Commonwealth as a defense against the license fee with no open carry allowed....

or

2) someone submit CHL application without the $140, then sue upon denial because no fee attached.

 

[TexasRifleman]

I'm not sure it will take a court case to get legal OC in Texas.

With this ruling I think we have enough strong minded Reps in Austin to introduce legislation legalizing it anyway.

Of course we have to wait til next year since the poor overworked folks in Austin only meet every 2 years

 

[AndyC]

Here in Texas we're trying to get open-carry on the books - there's a petition online at http://www.petitiononline.com/texasoc/petition.html

 

[mec]

In Texas, open carry-aside from specific areas like your own property or property under your control, is a Class A Misdemeanor. This is a serious crime with jail time and big fines + ineligibility for a concealed handgun license.

I would like open carry for one reason. The current law specifies that you may not expose your handgun to public view unless you already have the right to use deadly force. It's poorly worded but that's the way it is. You have to play Clay Allison and beat the drop on somebody who already has you covered to stay within the letter of the law. Being able to expose your gun in a timely manner would be a great help to difusing problems before they reach apogy.
If open carry becomes legal, it will at least not be mandatory. This is good for people like me who particularly dislike talking guns, pro and con, with crazy people. I worked with crazy people for thirty years and now that nobody is paying me for it, I prefer to stay far away from them.

 

[AntiqueCollector]

I think we need to target no-carry states first (IL, and states like NJ and MD and CA. WI is an oddball case, where open carry is legal but police harassment is a big problem in many areas, so police attempts to stop carrying needs to be a case as well).

 

[Ignition Override]

Mec:

Good point.
I know nothing about this topic, and only last fall began shooting rifles again after a 23-year period.

It had been my impression that the unknown factor (as it is with some of our FFDO guys in the cockpit) might be a deterrent, but the visibility might be much better.

If people can wear a handgun as gun store staff members do, can people in the same state also keep them concealed, to further confuse criminals?
Or do criminals ever consider something which they can not see (inside a store etc)?

 

[mec]

According to stats collected by John Lott, the unknown factor bridges over to benefit non carriers as it greatly complicates the victim selection process.
I don't see a whole lot open carry in businesses in Texas, though that is legal. The law now states that people managing a liquor store can have guns available with no specification as to whether it has to be in the open or concealed. Again, you seldom see them but they do tend to appear when somebody tries to make off with stock. Before a clarification in the law, our anti gun liquor control board director told a friend of mine that he could not carry openly and he "would be lucky" if they let him carry concealed on his license. I don't know if that lcb guy is gone or not but the legislature shut down several of his gun control notions the next time they met.

the recent clarifications in the law that allow for lawful carry in automobiles are specific that the gun has to be out of sight. There is a strongly embedded belief here that only police officers can carry handguns and the kneejerk reaction is to run in circles, scream and shout and babble incohenrently into the cell phone if an apparent non police individual shows a gun in public.

 

[ProficientRifleman]

again, just my opinion...

To quote Justice Scalia,

Just as the First Amendment protects modern forms of communications, ...the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

And then further,

At the time of the founding, as now, to bear meant to "carry". ...When used with "arms" however, the term has a meaning that refers to carrying for a particular purpose-- confrontation. ...In Muscarello v. United States,...in the course of analyzing the meaning of "carries a firearm" in a federal criminal statute, Justice Ginsburg wrote that "surely a most familiar meaning is, as the constitution's second amendment...indicates: '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'.

The next sentence is the grabber:

We think that Justice Ginsburg accurately captured the natural meaning of "bear arms"

Scalia goes on to say that this "natural meaning" is the same now as it was in the 18th century.

So, Texas law on carrying firearms is in conflict with the United States Constitution, and should be repaired.

By the way, IANAL...but I do know how to read.

 

[AntiqueCollector]

I kind of enjoyed how he used Ginsburg's words in a decision she opposed. Assuming we get incorporation, no-carry states may soon be a thing of the past.

 

[Aguila Blanca]

Is open-carry protected by the Second Amendment? (I'm looking at you, Texas!)
--------------------------------------------------------
The Supreme Court decision in DC v. Heller [pdf] mentioned, in passing, that concealed-carry restrictions likely do not infringe the right protected by the Second Amendment. However, it notably said nothing about the open carrying of a firearm. If the right referred to by the Second Amendment is understood in the same way in which it was understood in 1791, then it seems that open-carry is protected, even if the carrier is unlicensed.

I wonder: Can we get a favorable court ruling on this? It seems that Texas might be an ideal place to take this to court:

* Texas currently forbids all open-carry by ordinary citizens.
* Texas's RKBA provision is weaker than the Second Amendment (it says that the legislature may regulate the manner of carrying).
* The Fifth Circuit is generally conservative (i.e., not anti-gun).

On a related note, I wonder how Heller will affect "may issue" states. It seems to me that this decision basically invalidates "may issue." -- if a court anywhere can be found to extend Heller beyond Washington, DC, so it applies to the 50 states. If that can be made to happen, "may issue" is a dead duck because it's fundamentally a blanket prohibition.

 

[mec]

It's unpredictable. The first time concealed carry came up in the texas legislature it was 1987 and a different political party ws in charge. It basically got laughted at in the legislature. It came back at every biennial session with the governor making smart remarks about nuts asking her when it was going to be legal for texans to drive up and down the highway shooting each other. The lege finally passed a non binding referendum on the issue and the governor had a veto party to show her contempt. George Bush said he would sign the legislation if it passed and won the governorshiip in the next election. The major city newspapers campaigned heavily against the chl law and continue to attack gun rights on a regular basis. Of coure, the law took effect on 1 1 1996 but before that time, Texas was one of the most restrictive states when it came to handguns. There have been several exceptions to the generally carry prohibition since 1872 such as "while traveling," when "carrying large sums of money," "having received a threat that would alarm a person of ordinary courage", and later, while hunting , fishing or participating in a sporting activity." All of the exceptions were vague and went in and out of force with each amendment of the basic law. In general practice, the prorhibition was often ignore in the case of travelers, hungers or target shooters. Persons of the right ethinic description who were very wealthy were pretty well free to do as they wanted while politically connected individuals were sometimes granted a commission as a Special Texas Ranger.

Texas demographics are such that another power shift could come at any time. The central portion of the state along the I 35 corridor is heavily leftist in phillosophy with the big cities hostile to any civilian carry. Over the past several sessions, a good bit of legislative energy has gone into undoing mischief leftists pols have done to the concealed carry laws. The current governor has been very proactive in signing favorable legislation and recognizing licenses from other states. His political enemies blame him for a basically unfixable public education system and he made a lot of enemies supporting the massive trans texas corridor project that promises to destroy a large amount of private property from the Mexican border to Oklahoma.