Open-Carry is a right, but concealed carry is not?

[Charles L. Cotton]

As we get closer to the 2009 Texas Legislative Session, the open-carry issue is getting more "air time" in Texas. An interesting and frankly disturbing theme often repeated by open-carry supporters from other states is that open-carry is a constitutionally protected right, but concealed carry is not. I would like to hear from our open-carry supporters here on TexasCHLforum.com to see if they agree with this premise.

Let me start by saying that, in my opinion, the possession and carrying of firearms (handguns included) for self-defense is a constitutionally protected individual right applicable to the states through the Fourteenth Amendment, and that preservation of life is, in fact, the highest use of a firearm. I preface my remarks with "in my opinion" because the Supreme Court in Heller did not say this. It most assuredly hinted that with the proper case before it, one that presents a "bearing" question rather than a "keeping" question, this will be the ultimate holding. But as of today, there is no Supreme Court case that stands for the premise that carrying a handgun openly or concealed is a constitutionally protected right. We must be careful not to point to mere dicta in Heller and argue that it is part of the Court's holding. It is foolish to do so, sometimes dangerously so. Remember, there is dicta in the dissenting opinion too and we certainly don't elevate it to anything more than sour grapes from the losing side.

So let's hear some opinions folks. Do you feel that open-carry is a constitutionally protected right, while concealed carry is not? If you do feel this way, then please explain the basis for your opinion. I'm curious why some out-of-state folks feel that I have a right to carry my 1911 openly, but if I chose to cover it with a shirt, coat or vest, then the state has a right to impose a licensing system. I have repeatedly heard and read OpenCarry.org founders saying that "I don't have to have a license to pray, so why do I have to have a license to openly carry a handgun?" I fully accept this argument on a personal level, remembering that the Supreme Court hasn't gone that far -- yet. But on a personal level, I'm having a very difficult time trying to determine why these same people then say, "but you would still need a license to carry concealed." Would not the same First Amendment prayer analogy also apply to open-carry v. concealed carry? Could it not be argued that I don't need a license to pray to my God either openly on a public street, or privately in my own bedroom, so why do I need a license to carry a handgun concealed?

I hope this thread and the comments sure to follow will cause some open-carry supporters to rethink their strategy and their tactics. Support open-carry if you think that's the appropriate thing to do and I will cheer your dedication. But don't get so rapped up in a "win at all costs" frenzy that you sew the seeds of our destruction in later months and years as we work to expand the holding in Heller. Concessions made today to support open-carry could be the cornerstone of our opposition in future years. Alan Gura's concessions in Heller will come back to haunt us every time we try to expand Heller; let's not make the same rookie mistake with open-carry.

Chas.

[kitty]

I feel that since we have the right to "keep and bear arms" then we should be able to carry them any way we choose, open carry or concealed, without a license. If you can legally purchase a firearm, then you should be able to legally carry that firearm around with you. That's my answer, short and sweet.

[BigBlueDodge]

I really don't understand why our legislature would spend more than 10minutes discussing Open Carry. I would much rather our legislature focus their energy on expanding the rights of concealed carry licensee's. Let's say that Open Carry does somehow get passed, what really changes? We all pat ourselves on the back for gun rights getting another win. But what REALISTICALLY changes? We win a moral victory, but I gain nothing from a practical perspective. They only difference is I get to advertise that I've got a gun, rather than people being none the wiser.

Personally, I'd rather have my right to conceal carry over rule my employers right to restrict guns in the workplace. Winning an open carry law, but still having to leave my weapon in the car when I go to work is not a win in my eyes. I would rather have the right for college students to concealed carry on campus. These are more important for me than Open Carry. I fear that this discussion of Open Carry is going to cannibalise more practical, and usefull gun rights laws

[Liberty]

I believe that the right to bear doesn't have anything to do with concealed or unconcealed we have a right to carry.

I think I understand where the open carry guys are comming from. Some states have no laws concerning open carry. therefore they carry under their 2nd amendment right. The State gives them their CHL rights.

Things like this are going to happen when we get outsiders trying to help.

[jimlongley]

I feel that any governmental entity licensing us to do something is tantamount to that something being a privilege allowed by that entity. Somewhere along the way to where we are, we allowed the government to reduce our right to keep and bear arms to one of those granted priviliges, and I think that we should return to a standard where law abiding citizens are recognized as having that right and carry firearms, openly or concealed, as an exercise of that right.

Unlicensed open carry with licensed concealed carry is an anethma to our exercise of our rights protected by the Second Amendment.

Vermont style carry nationwide is my personal desire and I feel it should be all of our long term goal.

[Bart]

Requiring Texans to conceal handguns is no a big deal in the grand scheme of things. We can still carry, right?

It's kind of like the law that Rosa Parks had to move to the back of the bus. She could still ride the bus, right?

[bridge]

Requiring Texans to conceal handguns is no a big deal in the grand scheme of things. We can still carry, right?

It's kind of like the law that Rosa Parks had to move to the back of the bus. She could still ride the bus, right?

I'm not so sure that's the best/correct/appropriate analogy...maybe I'm reading it wrong?

Yes, she could still ride the bus, but she didn't want to be treated like a second class citizen; being forced to give up her seat for a white citizen and move to the back of the bus. Just because I can carry doesn't mean I consent to being treated like a second class citizen. We should all have the same rights...

[flintknapper]

I feel that since we have the right to "keep and bear arms" then we should be able to carry them any way we choose, open carry or concealed, without a license. If you can legally purchase a firearm, then you should be able to legally carry that firearm around with you. That's my answer, short and sweet.

Succinctly put....and my position as well.

[The Annoyed Man]

I view it through two different lenses. On a purely philosophical level, don't think that the RKBA differentiates between open or concealed carry. From a purely historical perspective, those founders that carried pistols for self defense tended to do so in a somewhat concealed manner for fashion reasons and for reasons of what was in the context of the time, considered to be good manners. At the time, pistols were carried in the open when the person carrying them had reasonable expectation that he was actually going to need them. That being said, there was no legal prohibition at the time, of which I am aware, which differentiated between open and concealed carry - that is, until the British made it an issue by insisting on disarming the colonists at Boston.

Given the above, I understand the RKBA to mean just that, and that whether we choose to carry in the open or concealed is our individual decision to make without oversight from government.

On the other hand, I am a political realist and I try to see things from a practical perspective. Having moved here from a state where concealed carry is practically non-existent, and for the most part, heavily discouraged, I am very happy to have a CHL, and I think wisdom dictates that caution is called for in the way we approach the further liberalizing of our RKBA, lest we lose more than we gain. I would love nothing better than to reverse all wrong with one fell swoop, but A) I don't think we have a snowball's chance in hades of pulling off, and B) there does exist a political opposition, and they will do everything they can to thwart us, leading to some of the issues that Charles outlined above. We lost our rights incrementally, partly because we gave them up incrementally, but also because it was incrementalism that swayed the fence sitters to acquiesce to the gradual loss of a right that they don't choose to exercise. I strongly believe that the most lasting and effective way to regain our rights in a way to make them stick, is to reverse the incremental trend in our favor. You are never going to convince any anti-RKBA activists to change their tune. However, convincing that vast middle ground of people who don't hold strong opinions about it one way or the other as to the rightness of our cause is absolutely essential to our success. An "in your face," confrontational attitude will likely convince them that we are gun nuts, and we will never sway them to our cause. Therefore, the incremental approach, where they can see for themselves that each loosening of the controls on the RKBA doesn't result in streets running with blood, is our best bet for success.

To me, the incremental approach would look something like this:

• Phase 1: Open carry with an OHL, concealed carry with a CHL;
  Phase 2: Open carry with no permit, concealed carry with a CHL;
  Phase 3: No license required for either open or concealed carry.

Phases 2 & 3 assume that the individual in question is otherwise lawfully allowed to be in possession of a firearm.

But, however that incrementalism is structured, there is no place in its leadership at the legislative level for political amateurs. As Charles has wisely pointed out on another thread, the current version of a bill supported by opencarry.org was drafted by a law student - not a lawyer - and it contains critical tactical errors which have serious strategic implications. There is no room in this process if we are to be successful for anyone who is not a level-headed, experienced, legal scholar and a sober thinker and strategist.

That's my 2¢.

[DONT TREAD ON ME]

I 110% agree with kitty way up there. I couldnt have said it better.

As my grandma shorty always says...short and sweet hard to beat!!!

[Right2Carry]

Since we have the right to keep and bear arms per the 2A , it should be the individuals choice on how they want to carry without interference from government entities.

[Oldgringo]

I agree with Chas. and The Annoyed Man if they said what I think they said.

An "in your face" open carry position is not in our long term best interests in the larger scheme of things. As TAM suggests, open carry, should it ever pass, must have some qualification/license attached to it, IMHO. Would you want everybody running around in a car/truck without some qualifying process? Yeah, yeah...I know, the constitution doesn't mention cars and trucks but that was then and this is now.

The more I think about it, the less I'm comfortable with the thought that every nut case out there could be running around, unbridled, with a loaded gun on his/her hip. Have y'all ever gone to a WalMart on Saturday?

My 2¢ worth

[Right2Carry]

I agree with Chas. and The Annoyed Man if they said what I think they said.

An "in your face" open carry position is not in our long term best interests in the larger scheme of things. As TAM suggests, open carry, should it ever pass, must have some qualification/license attached to it, IMHO. Would you want everybody running around in a car/truck without some qualifying process? Yeah, yeah...I know, the constitution doesn't mention cars and trucks but that was then and this is now.

The more I think about it, the less I'm comfortable with the thought that every nut case out there could be running around, unbridled, with a loaded gun on his/her hip. Have y'all ever gone to a WalMart on Saturday?

My 2¢ worth

Well anyone can carry a concealed firearm in their vehicle at this time if they meet the requirements set forth in the motorist protection act and no license is required. I might agree that some sort of safety course should be taken much like the hunters safety course, but a license should not be needed for a Right.

[mbw]

Charles-

Excellent post! I am in complete agreement with your thoughts here. Heller was, and is, a great start on returning our constitutional rights to keep and bear arms. But it is only a first step. Heller did confirm an individual right in the constitution to own a firearm, but that is almost all that it did.

I am a strict constitutionalist. We are either a nation of and under law, or we are not. There is no gray area there. I believe that the Constitution is written in plain language and that it needs very little interpretation to be fully understood both by our system of courts and by the general population. “Right of the people” means just what it says, a right of the people. That’s me and you and everyone else. If you don’t like that, change the constitution by the built in amendment process. Just don’t try to twist the original intent to fit your own idea of what you want it to mean.

I do believe that the Constitution recognizes a pre-existing right to not only “Keep” but also to “Bear” arms. The document does not differentiate between concealed and open carry, in fact no method of bearing or carry is mentioned. I would therefore conclude that the method of bearing is up to the individual under our constitution.

[anygunanywhere]

Open or concealed, any licensing requirement is an infringement and is unconstitutional.

No permission card should be required to exercise any right.

If hall passes were required for journalists to peck on a keyboard we would have no firearm infringements.

Anygunanywhere