Second Amendment

Is the Right to Bear Arms Limited to Guns in Plain Sight?

The 9th Circuit has endorsed a distinction that does not jibe very well with modern attitudes.

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Cabela's

It may seem obvious that the right to keep and bear arms extends beyond your front doorstep. But the Supreme Court has never directly addressed that question, and federal appeals courts have disagreed about the extent to which the Constitution allows states to restrict public possession of firearms. Yesterday a panel of the U.S. Court of Appeals for the 9th Circuit added to the confusion by ruling that "the Second Amendment encompasses the right of a responsible law-abiding citizen to carry a firearm openly for self-defense outside of the home."

The decision in Young v. Hawaiiwhich was written by Judge Diarmuid O'Scannlain and joined by Judge Sandra Ikuta, with a dissent by Judge Richard Clifton—was especially striking because the full appeals court concluded in 2016 that "the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public." Taken together, the two decisions imply that it is constitutional for states or cities to ban concealed carry but unconstitutional for them to ban open carry. That distinction is consistent with the views of 19th-century legislators and judges but does not jibe very well with contemporary intuitions about which kind of arms bearing is more threatening.

Young is a challenge to Hawaii's highly restrictive rules for carrying guns in public, which amount to a prohibition for all but a select few. Generally speaking, Hawaii requires that guns be kept at their owners' residences or businesses. Concealed carry is allowed in "an exceptional case" when the local police chief determines that an applicant has shown "reason to fear injury to the applicant's person or property." Such exceptional cases are quite rare. Hawaii County, one of the defendants in Young, has never issued a concealed carry permit, while other Hawaii counties "appear to have issued only four concealed carry licenses in the past eighteen years," according to a footnote in the 9th Circuit's ruling. Permits to openly carry firearms, notionally allowed "where the urgency or the need has been sufficiently indicated" and the applicant "is engaged in the protection of life and property," are nearly as difficult to obtain, in practice limited to security guards and people in similar occupations.

The plaintiff, George Young, unsuccessfully sought a carry permit from Hawaii County on two occasions in 2011. Young filed a federal lawsuit, arguing that the state's requirements for a carry permit violated his Second Amendment rights. U.S. District Judge Helen Gillmor disagreed, ruling that Hawaii's prohibitive law "does not implicate activity protected by the Second Amendment," which "establishes only a narrow individual right to keep an operable handgun at home for self-defense." Young appealed to the 9th Circuit, which had already rejected a constitutional right to concealed carry but had explicitly left the issue of open carry unaddressed.

The distinction between open and concealed carry is based on the Supreme Court's observation, in the landmark Second Amendment case District of Columbia v. Heller, that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." But by and large, as Judge O'Scannlain points out, those courts did not say such laws were constitutional because the Second Amendment has nothing to do with carrying guns in public. Rather, they ruled that legislators had the authority to ban a form of public carry that was perceived as especially threatening

In 1840, for instance, the Alabama Supreme Court upheld a restriction on "the evil practice of carrying weapons secretly," while making it clear that a comprehensive ban on public carry would be unconstitutional. The Georgia Supreme Court took the same position six years later. "So far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly," the court said, "it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But …so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void."

Several years later, the Louisiana Supreme Court upheld that state's ban on concealed carry, saying the law was "absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons." The court noted that the law "interfered with no man's right to carry arms…'in full open view,' which places men upon an equality. This is the right guaranteed by the Constitution of the United States."

Nowadays, I suspect, the attitudes reflected in these decisions and in the laws they upheld, based on the assumption that people carrying hidden weapons were up to no good, are more or less reversed, at least as far as the general public is concerned. While many people are alarmed by the sight of an ordinary citizen openly carrying a gun, concealed carry is discreet by definition and generates less concern. Yet judging from state laws, legislators continue to view concealed carry as more problematic than open carry. While 31 states allow people to openly carry handguns without a permit (in some cases only if the weapon is unloaded), only a dozen or so allow concealed carry without a permit.

Taking a broader view, all but nine states (California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island) allow lab-abiding members of the general public to carry firearms for self-defense, either without a permit or with one that can be obtained by meeting a short list of objective criteria. Young implies that limiting that right to a favored few, as the states with discretionary carry permit policies do, cannot be reconciled with the Second Amendment. "The right to bear arms must include, at the least, the right to carry a firearm openly for self-defense," O'Scannlain writes.

In reaching that conclusion, O'Scannlain starts with the language of the amendment itself (citations omitted):

The fact that the Second Amendment protects bearing as well as keeping arms implies some level of public carry in case of confrontation. A right to "keep" arms, on its own, necessarily implies a right to carry those arms to some extent. For instance, in order to "keep" arms, one would have to carry them home from the place of purchase and occasionally move them from storage place to storage place. The addition of a separate right to "bear" arms, beyond keeping them, should therefore protect something more than mere carrying incidental to keeping arms. Understanding "bear" to protect at least some level of carrying in anticipation of conflict outside of the home provides the necessary gap between "keep" and "bear" to avoid rendering the latter guarantee as mere surplusage.

O'Scannlain considers discussions of the right to keep and bear arms in the late 18th century, in the run-up to the Civil War, and during Reconstruction, which contradict Judge Gillmor's assumption that the Second Amendment protects nothing but "a narrow individual right to keep an operable handgun at home for self-defense." To pick one particularly telling example, Chief Justice Roger Taney, in the shameful 1856 case Dred Scott v. Sandford, recoiled at the idea that black men were entitled to "the privileges and immunities of citizens," which among other things would mean they had the "full liberty" to "keep and carry arms wherever they went." Coming at the issue from the opposite direction, an 1866 report from the Freedmen's Bureau described a Kentucky law that prohibited former slaves from carrying guns, complaining that "the right of the people to keep and bear arms as provided in the Constitution is infringed" by such restrictions.

O'Scannlain notes that Heller also implies a right to keep and bear arms that extends beyond the home (citations omitted):

Heller described the "inherent right of self-defense" as "most acute" within the home, implying that the right exists, perhaps less acutely, outside the home….Heller also identified "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" as presumptively lawful. Why bother clarifying the definition of sensitive public places if the Second Amendment did not apply, at all, to any public place?

Once Anthony Kennedy is replaced by a justice who is more inclined to hear Second Amendment cases, there's a good chance the Supreme Court will make those implications explicit, and this case could provide a vehicle to do so. If Young "isn't reheard en banc, or the panel decision is affirmed on en banc rehearing," Eugene Volokh observed yesterday, "then the case may well go up to the Supreme Court, since this decision reinforces a split among the circuits on the subject."

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  1. Binding precedent for the Hawaii case, 9th Circuit en banc, is that concealed carry is not protected by the 2nd.

    Your article is moot.

    1. Unless the 9th circuit rehears this case in banc and reverses it, then it isn’t binding precedent any longer.

      1. 9th circuit en banc held that concealed carry was not a right, and declined to rule on open carry.

        This case held that open carry is a right, and deferred to precedent on concealed carry.

        1. Historically concealed carry had been the more restricted, which would seem to make the most intuitive sense. The fact that the reverse is true nowadays demonstrates how much a sort of visceral “guns are scary” sentiment is behind today’s restrictionism.

          1. And oops I think this is what the article itself says, for the bulk of its copy. I should read these things beforehand.

        2. That’s exactly what the article says. How does that make the article moot, Bubba?

          1. your question presupposes commenters read past the lied before jumping to the comments to talk shit. sadly, that supposition is likely a bridge two far. 140 characters or bust.

    2. Infringing on the right to keep and bear Arms by the People is unconstitutional, so the 9th Circuit’s precedent is worthless. Prohibiting keeping and bearing Arms is expressly illegal, no matter what some Lefty judges think.

      If I lived in the 9th Circuit, I would disregard their precedent as unconstitutional.

      1. If I lived in the 9th Circuit, I would disregard their precedent as unconstitutional.

        Good luck with that.

        1. Well, that is how you get test cases to try to bring before the Supreme Court. Someone has to take one for the team.

      2. Firearm laws are more dependent on the State than which Circuit Court controls. Arizona (in 9th Circuit) law states that any person 21 years or older, who is not a prohibited possessor, may carry a weapon openly or concealed without the need for a license.

    3. Can you elaborate? The article is about the distinction between open and concealed carry?the 9th’s Circuit en banc decision on concealed carry doesn’t apply to open carry?this case may well be heard en banc (as the article points out), but that certainly doesn’t render the article moot (or the decision in contradiction to precedent).

    4. This case was about open carry not concealed carry. 9th Circuit precedent is that concealed carry may be legally banned while they did not reach open carry.

      Your comment is moot.

    5. It’s scarcely moot, since carry of any kind in Hawaii has long been severely restricted. What this decision says is that open carry in Hawaii is now legal, and unless all the legislative turds want to see lots of guns being toted around in the open, they better get their asses in gear and start granting LOTS of concealed-carry permits.

      The fastest way to make that happen is probably for everyone who has a gun in Hawaii to strap it on and go about their daily business.

    6. The ‘bear’ phraseology of the 2nd is being misinterpreted by everyone. The 2nd Amendment was originally written and ratified by the House as:

      A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.

      The right/obligation to ‘bear’ is purely a militia right. Congress can neither call up a ‘selective’ militia (which was viewed as little more than a standing army in waiting) – nor can it compel the ‘religiously scrupulous’ to bear arms. Bear arms is ENTIRELY about using those arms as part of an organized militia in the common defense. iow – the militia in training/service must be both universal and voluntary. It’s a very subtle principle actually – but it is entirely about the common defense. The definition of bear arms does not change merely because that last clause was eliminated from the 2ndA.

      The individual self-defense right is encompassed in the KEEP (ie no confiscation) – and in the 9thA and 10thA.

      1. As an aside – the 2ndA should actually be used to proclaim either a)our current standing army as unconstitutional or b)our abdication of a militia form of defense as unconstitutional – except that no one can get legal standing to do that. Because our standing army is clearly BOTH a selective militia and a voluntary one – not a universal and a voluntary one. And our abdication of militia form of defense is merely a specific subset of selective that equals zero.

      2. Being misinterpreted by eveyone… including SCOTUS according to Heller. Nice try.

      3. Irrelevant, as that isn’t the version that was incorporated into law.

        All serious Constitutional scholarship has abandoned the specious claim that the second amendment is a militia “right.”

        It’s ludicrous on its face to think that a government-controlled military force need its “right” to bear arms protected.

  2. Can you imagine the outrage if we were required to jump through hoops, toe the line and genuflect to authorities in order to exercise our 1st Amendment rights?

    1. Outrage? It’s a plank of the Dem platform.

      1. It is bipartisan and known as McCain Feingold.

        1. For trivial values of “bipartisan”; I prefer the term be restricted to matters that have roughly equal level of support in two parties, not one or two turncoats in one party, and virtually every last man in the other.

          1. Except that McCain Feingold was signed by George Bush and I have never seen any serious efforts on the part of the GOP to repeal it. One GOP Presidential nominee co authored it and a GOP President signed the damn thing. I think the GOP owns that piece of garbage just as much as the Democrats do.

            1. It’s true that many Republican incumbents were not all unhappy to see the law pass, given the way it was designed to handicap challengers. But I’d still dispute “just as much”. That atrocity failed 41-176 among Republican House members, and 11-38 among Republican Senators. The Democratic numbers were 198-12 and 48-2.

              It was mostly a Democratic bill.

            2. Hasn’t it been eviscerated by various court cases? Not that that doesn’t indict its original supporters even more deeply of course. But why is a largely symbolic repeal so needed now?

        2. Also more recently FOSTA is a huge attack on the 1st passed by Repub House/Senate and signed by Repub President.

          1. If FB and YT can police their content against things like Prager U, I don’t see why they shouldn’t be able to police it against sex trafficking. Basically, they already spiked any claim they’re incapable of this by their political censorship.

            That’s not a comment on the merits of FOSTA, just an explanation of why I have no sympathy for FB and YT’s complaints about it.

        3. Monopartisan as both McCain & Feingold are Progressives.

    2. Broadcasters have to do that. The fact that the FCC can fine broadcasters for indecent or obscene language is a direct contradiction of “Congress shall pass no law…abridging freedom of speech…” The First Amendment is routinely ignored when the government chooses to do so.

      1. That’s because there is no right to operate a transmitter. Don’t get free speech confused with its method of propagation. You also have a constitutional right to travel freely, but no right to own a vehicle.

    3. Yes, I read the news from the UK, Canada and Australia.

  3. Coming at the issue from the opposite direction, an 1866 report from the Freedmen’s Bureau described a Kentucky law that prohibited former slaves from carrying guns, complaining that “the right of the people to keep and bear arms as provided in the Constitution is infringed” by such restrictions.

    But but the individual right to bear arms is supposed to be a recent invention of the evil racist conservatives!!

    1. No. With regard to the South, it’s an antique invention of evil racist conservatives. But they did insist on keeping the laws and customs regarding arms on a state-by-state basis, lest any Yankees start arming their slaves. That’s probably why there is zero evidence in the founding-era historical record in support of putting a right to carry arms for self-defense into the Constitution.

      1. Stephen as usual has it exactly backwards. Gun control legislation was but aggressively used by racists to disarm the newly freed blacks in the South. The right to bear arms and the court cases defending that right (which are extensively discussed in the majority opinion) were brought by those attempting to counter the racist confiscation and disarmament.

        1. Nothing backward about it. Before and after emancipation, the southern conservatives’ policy was to do whatever would keep guns out of the hands of blacks, while putting them into the hands of whites. It’s pretty much the southern conservatives’ policy today, too.

          I’m just talking about history, here Rossami. You want to show I’ve got it backwards, show the historical evidence. But please, don’t try any retreads of the feckless notion that the labels D and R have been durable markers for liberals and conservatives through all that time.

          1. Yeah, history was that it was Democrats then, and Democrats now, so you’re using “conservatives” in a very misleading manner, and that’s the charitable gloss on it.

          2. LMAO.

            Poor SL trying to rewrite history like a good little Progressive serf when it is very clear that Progressive Democrats were racist and instituted said laws and policies. Just like the Progressive Southern Democrat President Wilson segregated the federal government.

      2. That’s probably why there is zero evidence in the founding-era historical record in support of putting a right to carry arms for self-defense into the Constitution.

        Other than all the evidence, such as PA’s Constitution of the time, that specified that “the right to keep and bear arms for defense of self and state shall not be questioned”.

        1. Patrick, you probably knew?or could have deduced if you took a moment?that I was talking about the federal Constitution. And that your reference to the PA Constitution is a point in favor of my argument, not against it. Because that wasn’t clear to you once around, here it is again: “They did insist on keeping the laws and customs regarding arms on a state-by-state basis.”

          That’s why you’re talking about the PA Constitution?a state constitution?and not the federal one. To sharpen the point a bit, what do you find if you look, for instance, at the Virginia and North Carolina constitutions? Not personal self-defense clauses, militia clauses. In slave states, they had plenty of reasons to think militias were extra important. And a right to arms for personal self-defense was very important too, but only if white Virginians and North Carolinians made all the decisions about who got the arms?and not any damned Yankees waving the Federal Constitution.

          1. Oh I know you are, but my point still stands. Your point about “laws and customs regarding arms on a state-by-state basis” is irrelevant, even if true.

            I’m talking about state constitutions for two reasons. 1. They used state constitution clauses as basis for federal ones. 2. It shows the mindset around the phrase “right to keep and bear arms” at that time.

            VA’s constitution of that time does talk about militias (which strengthens my reason #1 above). But it doesn’t mention right to keep and bear arms, so its irrelevant to this discussion.

            NC’s constitution does have it, and you are right it only talks about defense of the state. Massachusetts has a similar clause.

            Vermont’s matches PA’s.

            So we are 2-2 on just defense of state vs defense of state and self. However, it can be argued, as the Tennessee Supreme Court did, that “for the common defense” actually includes defense of self, and not just state. Because defending self stops crime, and presumably stops further crime, defending self is actually part of the common defense.

            And even further, after ratification of the Constitution and the Bill of Rights, nine states, one territory, and one independent nation (Texas) included defense of self and state in their constitutions.

            In conclusion, you are completely wrong. The right to keep and bear arms includes defense of self and state.

            For further discussion, see here

            1. Patrick, that simply isn’t an originalist argument?or at least not a historical one. I’m mindful that “originalism,” as used in practice, encompasses a lot of stuff that lawyers like, and historians would laugh at. Let’s not make too much of that.

              This isn’t a contest to see who can pile up a bigger stack of citations which touch tangentially on similar-seeming subject matter. We are discussing the evidence, or lack of evidence, to show the founders’ intention to protect a personal right to armed self-defense with the 2A.

              By customary historical standards, that generally means you show the people who were there, at the time in question, saying explicitly what you claim they said. “There,” in this case, is the Federal Convention, and some other venues directly related to amendment and ratification of the federal constitution. “At the time,” in this case, is the interval encompassed between convening in Philadelphia, and completion of ratification. “The people who were there,” are the ones history now acknowledges as the founders.

              Your reliance on “mindset” and similar notions fails. Perhaps you can demonstrate existence of some “mindset.” Because you have no way to show?except by using the historical standards mentioned above?how much of any particular “mindset” was included, how much was left out by happenstance, and how much was deliberately excluded, that discussion is pointless.

        2. There is ample evidence. Look at the words of George Mason or the admission of Hamilton in Federalist #29. ” We did not fight a war against tyranny to trade one tyrant for another, the only way for a standing army to rule is you first must disarm the people” – George Mason, Delegate to Constitutional Congress from Virginia. ” The only protect of the people from the excess of government is the right to keep and bear arms.” – Federalist #29. These are two examples but clearly the intent was to give the people a way to defend themselves if the Federal government every became overbearing an intrusive. In addition, the Founding Fathers considered the right of an individual to defend themselves to be a NATURAL right and therefore saw no need to put it into the Constitution. What changed is the creation of police forces across the US. Today urbanites think the role of police is to “protect people” and this is why they argue no one needs a gun for self defense. The reality is police investigate crimes AFTER they occur. The amount of crime they prevent is due to visible deterrence (criminals see them and choose not to act) but rarely are crimes prevented due to active intervention. Police arrest people who have committed crimes and prevent them from committing additional crimes after investigations such as drug cases, but they do not prevent crimes such as murder or other crimes against persons because it is impossible to know when and where they will occur.

      3. The right to arms, and the right to carry isn’t an invention of evil racist Southern Democrats, that was a right the British colonists brought with them (and expanded).

        Gun control was an evil invention.

        1. People who know little about history do not understand that the concept of a police force, is a modern invention. NYC created the first police force, but they only operated within the city and as we all know, did little to prevent crime. Like police today, 99.9 % of what the did was investigate crimes that had occurred. The right to self defense was considered a natural right by colonists and throughout the 19th and early 20th century. When this country became more urban than agrarian, people began to look at police as “protection”. Although many police vehicles may have logs which say “protect and serve”, the reality is police “investigate and arrest”.

      4. ” That’s probably why there is zero evidence in the founding-era historical record in support of putting a right to carry arms for self-defense into the Constitution.”

        There is also zero evidence of the same period for putting a right to free speech in the Constitution.

        Indeed, that was the source of the opposition to the new proposed Constitution – that there was little protection of individual rights.

        The Federalist supporters of the Constitution said they weren’t needed because the govt’ was of “limited powers”.

        The anti-Federalists didn’t buy that argument and so we got the BoR.

        ALL the calls for the protection of all the individual rights including the right to arms occurred after the Constitutional Convention.

        It is intellectual sophistry to claim there was nothing in the debates over the Constitution about a right to arms (or the other rights).

        The Constitution was debated plenty after the convention and before it was adopted.

        The desire to protect the right to arms is well documented then.

        1. AZ Gunowner, please show me any original sources you refer to “then.” I take “then” to mean during the interval between convening the Federal Convention, and ratification of the amended Constitution. What would count would be any person acknowledged by history as a founder, who said, explicitly, that the 2A was added to the U.S. Constitution, at least in part, to assure a right of personal self-defense.

          I can be of help if you’re feeling over-challenged. Save the effort. Don’t you suppose if such a citation had ever been found, it would have been the centerpiece in Heller? It isn’t there. That suggests you could waste a lot of time looking for it. Pro-gun advocates have ransacked the historical record looking for that. As far as I know, all they have come up with is stuff of later vintage, or state-related stuff, or dictionaries, or retrospective commentary from the 19th century?basically the stuff Scalia used in Heller, when he couldn’t find any actually relevant history.

          Try to remember, the challenge is not to show colonial Americans believed in a right to armed self-defense. That’s easy to show, but irrelevant. The challenge is to show the founders intended to put armed self-defense into the U.S. Constitution.

          It seems easier to just plead living constitutionalism, and that way make Scalia’s other stuff actually relevant.

          1. The challenge is to show the founders intended to put armed self-defense into the U.S. Constitution.

            The constitution does not presume to grant our right to self-defense. It is acknowledged as already existing, and the government is forbidden from infringing it.

            -jcr

            1. Sure. Problem is, all sorts of things were already existing, but not made part of the U.S. Constitution. What if armed self-defense was left out of the U.S. Constitution, but put in some state constitutions? Would the omission from the U.S. Constitution mean a right of armed self-defense didn’t already exist? Of course not.

              What’s wrong with living constitutionalism as a basis for armed self-defense? It’s the method Scalia actually used in Heller. You ought to get on board with Scalia, and stop tying yourself in knots trying to defend historical-sounding notions which get no support from the historical record.

              1. What’s wrong with living constitutionalism as a basis for armed self-defense?

                What’s wrong with it is that the constitution is not the source of our rights. Gun grabbers latch onto the wording about the militia to try to pretend that our right to self defense is contingent upon participating in a group activity.

                -jcr

          2. Read the works of George Mason. Mason was a Delegate to the Constitutional Convention from Virginia and the “Father of the Bill of Rights” because he insisted the Constitution needed to contain protections for the individual from the power of the Federal government. His instance a Bill of Rights be created is what started the debate between Hamilton and Adams we know as the Federalist Papers and ended in the first 10 amendments to the Constitution. In addition, you can look at every SCOTUS decision beginning in 1803 until Miller in 1934, and it is crystal clear, the right of an individual to carry a firearm for defense is a Constitutional right. What changed with Miller is the authority of the Federal government to write and enforce gun laws. Prior to Miller, gun control was a state issue. Miller changed the authority of the Federal government because the NFA of 1934 was a response to a 2 yr crime wave across the US. Names like Dillinger and Bonnie and Clyde are famous because of this crime wave. Police were outgunned and the NFA was the first law to restrict the private ownership of ACTUAL weapons of war such as the BAR (Browning Automatic Rifle), used by Clyde Barrow.

          3. Right, the 2A, and indeed the entire BoR sprang out of Madison’s mind in the first Congress as a sort of magical creation with no reason thereof.

            It is like you don’t even know of the existence of the Federallists and the anti-Federalists.

            but now of course your are switching arguments from –

            ” That’s probably why there is zero evidence in the founding-era historical record in support of putting a right to carry arms for self-defense into the Constitution.”

            to –

            “the challenge is not to show colonial Americans believed in a right to armed self-defense. That’s easy to show, but irrelevant. The challenge is to show the founders intended to put armed self-defense into the U.S. Constitution.”

            Actually the challenge is to show that the 2A wasn’t put into the BoR to protect the ability of the people to have arms for their own defense AND the defense of the state.

            And for THAT claim there is ZERO evidence.

          4. oh, and if you are really serious about the evidence, well read –

            Joyce Lee Malcolms work(s). Among others of course that you aren’t aware of either I guess.

        2. CONSIDER that all the men working on putting together what would become the governing document for the new nation had spent several years living and surviving here on these shores. SOME of the things they faced on a regular basis were indians, highwaymen, the often nasty French, still fomenting indian insurrection, dangerous four legged creatures roaming about, pirates, both at sea and ashore, and, during the War for Independence, more than a few hotheaded Regulars taking upon themselves when opportune to “help things along”. Further, the only resource for the preservation of “the security of a free state” (that word meant simply organised society) being the militia, and militia being simply the people, armed with their own weapons, and having worked at gaining the needed skills to be effective at that preservation of “the security of a free state” meant that THE PEOPLE must needs be at liberty to arm themselves, train, practice, equip, with whatever tools they felt needful and bear them in whatever manner they felt appropriate. There WAS no standing army, no police force, no militarised law enforcement, the duties of the sheriff were more revenue and property oriented except when a criminal suspect needed apprehended, or papers served. “Law enforcement” as known today did not exist. Thus everyman had as much right to arm himself as he saw fit as to breathe.

      5. Well all I have to do is look at the English right to arms, since that is the origin of the second amendment. Blackstone describes it as an aux right of individuals used for self preservation and defense. It was part of a package of rights to protect the three primary rights of individuals in society. Then you need to only look at the writings of the founding fathers and see how they describe our second amendment as an enhanced version, that doesn’t have any qualifiers like the English version did. How about you find me any evidence from the founding era that the second amendment didn’t protect a right to arms for self defense?

        1. DH, you are in denial. I already described the founding era evidence?which is evidence of absence for self-defense, plus the presence of the militia purpose, which is copiously attested in the historical record. Nothing for self-defense, but piles of citations for the militia purpose, plus militia language in the 2A itself, and also in Article 1 and Article 2, and the case becomes overwhelming. Beyond strong enough to put the burden entirely on those who argue otherwise.

          You write, “Then you need to only look at the writings of the founding fathers and see how they describe our second amendment as an enhanced version, that doesn’t have any qualifiers like the English version did.” Good, that could be evidence, if you could find it. Show me, because I don’t know where it is, and I doubt you do either, or you would have cited it already.

          1. If you haven’t even bothered to read Blackstone and understand the connection between the English right to arms and our second amendment, then I won’t even waste my time.

          2. then riddle me this: WHY did almost every colony have LAWS in place, long before 1775, that mandated EVERY MAN must be armed as he escorted his family from home to the church for sabbath meetings? Only on one occasion I can cite did those arms, the carrying to church being mandated, were brought to bear in an armed conflict with the British Regulars. No shots were fired, but the Redcoats were definitely put in their proper (submissive) place as they stared at the barrels of the primed and cocked muskets and Brown Bess’ of the churchgoers who mustered out to confront General Gage’s men desiring to confiscate their communities’ stores of powder and shot. So what had always been done as self defence against any number of personal threats as each family proceeded to church became useful in a military confrontation.

            Anyone who claims BOTH uses were not clearly in view is either in denial or corrupt. Go and learn the meaning of the phrase “the security of a free state” as meant at that time and place. Then learn of what threats to that “security of a free state” were known in the same time and place. A housebreaker was a threat to “the security of a free state”, as were thieves, livestock rustlers, highwaymen, pirates, indians, certain animals… a free state is not secure with such threats about. Thus the means to defend against ALL such theats was acute… and thus the language of that Second Article…..

          3. You assume the word militia has the same connotation as it does today which is national guard. If the intent of the 2nd amendment is to provide for the people a vehicle to counter an intrusive and oppressive Federal government, which Mason and others made clear is the intent, how is this accomplished by a militia armed and controlled by that same Federal government? The problem is you are asking for evidence yet are making assumptions based on arguments already proven to be false on multiple occasions.

      6. I’ll even give you a freebie. Benjamin Oliver. Now find anything else.

        1. ?

          1. That question mark is the first thing you’ve gotten right.

  4. Oh, and I agree that concealed carry is not historically a protected right. It is nefarious.

    I think it would be a reasonable accommodation to modern sensibilities for a State to encourage concealed rather than open. I am not sure how I feel about banning open carry.

    I have seen exactly ZERO people open carry in the Houston area since it was legalized almost 2 years ago. (IIRC)

    1. I don’t see what the issue with open carry is beyond superstitious fear of evil gunz!!

    2. I can’t speak for Houston but most it’s difficult to open carry in a lot of urban areas. For the carrier, it’s not worth the hassle of being harassed or possibly getting killed by police.

      1. There is that.

      2. There are lots of downsides to open carry, and I don’t see any upsides.

        Unless there is a critical mass of people open carrying.

        1. I am not sure there are any more downsides to open carry then there is to concealed carry. The cops will shoot you just as quick regardless.

          1. If the cops never see the weapon they’re much less likely to shoot you. And even if you don’t get shot, you’re going to get stopped and threatened by cops constantly (in certain areas) when you open carry. Getting shot is just the luck of which cop responds.

            1. Sure, unless you get pulled over or interact with them. Then you either tell them you have a gun and get shot or hope they don’t see it and shoot you.

              1. Yeah, but to some extent, you can avoid getting pulled over by obeying traffic laws, which means to some extent you get to decide how much you interact with the police.

                Walking around in public with a gun on your hip, in this day and age, every body else gets to decide how much you interact with the cops.

                1. Right, in many places, there’s always going to be some idiot around who will deliberately phone in to 911 claiming you’re threatening people. Just another version of SWATTing.

                  1. I’ve sctually SEEN someone call the cops because a guy was openly carrying in an open carry state.

                    They came pretty quickly and haras, er, questioned that guy for a few minutes. He was ultimately let go with no problems, but one should presume that if OC is explicitly legal that no one should be questioning that guy at all. It’s like questioning a guy for driving the speed limit.

          2. Yeah, a half-second to a second and a half faster draw time for the average carrier, deterrence from attack, comfort, and the ability to carry large frame guns are just horrible downsides to open carry. Smh.

        2. There are some upsides but they’re highly theoretical. Living in an urban center, I’m not a fan of open carry for myself. I’ll not do it even though it’s legal here.

          1. Right

            I’m personally comfy practicing OC while hiking (wearing a backpack makes on body concealed impractical).

            In town while it may be legal, I just don’t like the feeling that everyone is staring at me even though I know that most people are oblivous. I don’t begrudge others their preferred means of carry of course. Its just not for me.

        3. Cultural change.

          Bottom line is that the number of gun owners and gun carriers as a proportion of the population is on a steady decline. This makes carry and ownership increasingly a thing done by “those people”, and a thing done by “normal Americans”. This makes it easier (socially) to pass laws to restrict guns on various ways and, where legislative solutions fail, to do it socially instead.

          By being open about it, gun carriers can force the conversation and attempt to normalize it by making it not so unusual and scary.

          Or to put it another way… If you want to didn’t legal and social stigma, you have to be willing to confront it. Concealed carry does not confront it the way open carry does.

          1. What are you basing that declining number on? Sales are at record highs & states with reasonable laws are seeing increasing # of permits issued.

            1. In Illinois, the number of FOID cards (basically the shall-issue permission slip to possess a firearm, but not carry) has doubled in the last 10 years.

              16% of Illinoisans now have one

              1. In Illinois at least, that suggests increasing number of gun owners.

                1. *chk-chk

            2. Consistent polling over the course of decades.

              Unlike Brett below, I have a higher esteem of gun owners and don’t feel like slandering them all as a bunch of liars.

              1. Polling. Usually telephonic.

                So a stranger calls you one evening and starts asking do you own firearms and how many, and you think people are honestly answering? Is this like the poll which claimed a majority of NRA members support gun control because respondents told them they were members?

                Please.

          2. “Bottom line is that the number of gun owners and gun carriers as a proportion of the population is on a steady decline.”

            I think that it was in decline for a while, but that reversed a decade or two ago.

            What you’re seeing today is a population of gun owners who are rather averse to answering pollsters, because they’re rationally paranoid after decades of enduring a campaign to extinguish their rights. A campaign which isn’t quite over yet.

            After we’ve had our rights properly respected for a couple more decades, and gun controllers get the same treatment segregationists get, I expect we’ll find out what percentage of the population is actually owning. Right now there’s a serious underground component to the gun culture.

            1. Hey, if you want to argue that gun owners are lying liars that lie a lot consistently over the course of decades, be my guest.

              I have no intention of making that argument or basing arguments of a “silent majority” on slander.

              1. You cannot even prove the respondents were actually gun owners. You simply take their word.

        4. “There are lots of downsides to open carry, and I don’t see any upsides.”

          easier access to the weapon? cops must open carry for some reason.

          1. Intimidation factor. Also explains the PoPo uniforms, mace, nightsticks, radios, badges, jump boots, bloused trousers, mirrored sunglasses, black SUV’s, military ranks, sap gloves, belts that jangle with hardware….need I go on?

            1. Then what about the plain cloths or off duty cops? Seen plenty in public rock out with their glock out.
              not that I disagree with what you said, but I carry “open” on my waist for various reasons, usually with a loose long shirt or coat partially obscuring, and can confirm that it is a much quicker, easier draw when not concealed.

            2. Intimidation = deterrence. That’s a good thing.

        5. Try concealed carry in AZ in the summer.

          on that note we’ve had open carry since Statehood.

          I haven’t read any stories of open carriers being shot first and maybe 1 of having their gun stolen off their hip.

          I have read stories elsewhere of concealed carriers having their guns stolen too.

          One of the big upsides to OC is that it does let potential predators know you are armed and so they may very well stay away.

          That is the same deterrent factor that keeps burglaries in the US confined to empty houses. It is well documented that burglars avoid homes they think may be occupied out of fear the homeowner may be armed.

          1. not “empty” houses, I mean houses wherein the burglar is sure that someone is not home.

        6. there are times and places where open carry is appropriate. Let that be the decision of the one in question. WHY do government insist upon regulating every aspect of our ives, making them more miserable? If I wanna carry openly, let me, MY call If some copper or Bad Guy sees my piece and takes some action, that’s MY issue, not yours, You let ME decide what is right for ME at the time and place in question.

          We fought that stinking war against the Brits because “they had a mind that they should tell us how we shou8ld live, and we had a mind that they wouldn’t.”. That’s from one who was there with Captain Parker’s Militia as they faced off against General Gage’s crack troops who demanded they surrender their arms. No, t’warn’t about tea txax, document stamps, or even the citizens of Boston getting evicted from their own homes to make space for the three thousand lobsterbacks King George Three foisted upon them.

    3. Well I would hope that you would “feel” that the state shouldn’t ban open carry since there is no doubt that open carry (at least) is clearly a right that existed prior to the adoption of the Constitution and doesn’t depend on the 2A for its existence as the SC said in 1876 in Cruishank.

    4. In Texas, in order to openly carry a handgun, you have to have a concealed-handgun license. The main purpose of the law, two years ago, was to stop the harassment of people that conceal carry should their firearm accidentally be seen.

  5. I’m thinking of augmenting my cock such that it’ll have a barrel running through it. If the blue thugs want to take my firearm away, they’re going to have to give me a handy in exchange. (The other benefit is that when I get raped again I’ll have a nice surprise for the assailant!)

    1. pervert

  6. This is an extremely good point. If someone you love has a drug problem, you should make sure that you have absolutely no idea what to do if they overdose

    Open carry everywhere would be a great start.

  7. Several years ago, Peruta decided it was ok to ban conceal carry because open carry was (barely) legal; you had to carry unloaded, not even a magazine in the gun. Just a few days or weeks later, the legislator closed that “loophole”. Everyone in the gun community expected that little twist. It was almost as if the legislator was waiting for the farcical decision to introduce the bill.

    So in some ways, this decision was inevitable. Having previously ruled that the right to bear arms meant some manners could be banned as long as some manners were available, no matter how bizarre. Now they more or less had to allow the last remaining possible manner. I suppose if the state of Hawaii had said you could carry if the gun was locked on the end of an eleven foot pole, the 9th would have said Yup OK.

    1. UK required you to weld a pole to the grip of a handgun…

  8. “Chief Justice Roger Taney, in the shameful 1856 case Dred Scott v. Sandford, recoiled at the idea that black men were entitled to “the privileges and immunities of citizens,” which among other things would mean they had the “full liberty” to “keep and carry arms wherever they went.”

    It is amazing how all gun control was originally designed to disarm a segment of the population, but the popular narrative continues to be that those who oppose gun control are the real closeted bigots

    1. I should specify all gun control in *America*

      Which includes gun bans in the South during reconstruction and gun control in California designed to disarm the Black Panthers

      1. Gun control is always for that purpose. Guns are the great liberator and equalizer. The powers that be have never liked that.

      2. _All_ gun control is designed to disarm a segment of the population. That segment is more often defined by something other than race. In Hitler’s Germany, Nazi party membership was the main qualification for gun ownership. In England from Henry VIII to Queen Victoria, it was defined by class and religion – arms were generally banned for the lower class and Papists, but in a popular Victorian Era fiction series, Scotland Yard’s disarmed policemen were happy to be assisted by Dr. Watson with a revolver. In Dianne Feinstein’s dreams, a far larger segment of the population would be disarmed, but politically-connected one-percenters like her would still get concealed-carry permits.

    2. Not to mention New York City’s early gun control laws, the so-called “Sullivan law” disarming “everybody” but…. when Sullivan’s guys were “caught” they were not cited. When their opposition were caught whilst armed, THEY got the full weight of the ” law” thrown at them. Funny thing is, they were all “white guys”. One way to tip the advantege toward your own and against the other rats just like your rats except that YOU don’t like those “other rats”.

    3. Yep. NY’s Sullivan Act was to ensure Irish maintained control of the docks following the Italian influx of the late 1800s.

  9. Taking a broader view, all but nine states (California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island) allow lab-abiding members of the general public to carry firearms for self-defense, either without a permit or with one that can be obtained by meeting a short list of objective criteria.

    Yep, that is pretty much the full list of the shittiest states.

    1. In Cali its required to have a permit

    2. You forgot Illinois!

      1. Illinois is Shall Issue with objective criteria (no ‘good cause’ required), so that’s why its not on that list.

        1. I’m not sure Connecticut properly is on your list. Yes, the corrupt Malloy Administration has its own ideas; however, as a former resident and citizen there, I well know that Connecticut’s constitution, Art. I, sec. 15, explicitly allows the keeping and bearing of arms in defense of self and the State. And, while I was there, the police chief of Hamden (who was notorious for denying all permits to carry in Hamden, regardless of justification) was ordered by the courts to change his tune, specifically in the face of the state’s right-to-arms provision.

          1. CT has recently had several issues with new gun ban laws and CT citizens have rebelled against the recent “assault weapon” ban, refusing to turn them in to police. I would note that the police in most areas of CT also refuse to collect/force turn in of “assault weapons”. IIRC the turn in rate was something like 10%.

    3. Rights are not subject to “criteria”.

  10. 2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    All gun regulations are unconstitutional, therefore illegal.

    1. Incorrect: Your right is not to possession of the gun as such but to do what possession legally allows. Most states have right-to-arms provisions in their constitutions, and it is these which properly protect personal self-defense, hunting, target shooting, competitions, &c., per applicable state laws. The 2nd Amendment protects the militia and a right to arms arising in the treason clauses, state and federal. See A. Hamilton, The Federalist, # 28. Heller, of course, was unique because it was brought in a territory, so CA2 directly applied. But, a better opinion would have kept the militia provisions of CA2 separate, then ruled for Heller upon Ninth Amendment considerations. As it stands, Heller is ambiguous, since Justice Scalia was unable to specify the precise nature of the right….

      1. Your interpretation would allow anyone to arm himself with any device he desired including artillery, combat aircraft, and maybe even nuclear weapons. It goes without saying that (1) such devices are totally inappropriate for, e.g., personal defense against burglars, and (2) far beyond the accouterments of common militiamen.

        Furthermore, you do not distinguish PERMISSIVE regulations (such as those in Switzerland): A State clearly has power to license private possession of tools of war to defend the State and, for purposes of public safety, declare the conditions under which training with such arms can occur.

        To say otherwise is to empower every terrorist on the planet to come here and “infringe” the peace of our society. No sane citizen is going to tolerate that.

        1. Not necessarily. There were privately owned canon and warships during that area.

          A terrorist is not covered under the 2A, so not sure your point there.

          1. Cannon are not “arms” Patrick.

            The 2A protects “arms”.

            “Arms” are weapons one carries for self-defense or offence in case of confrontation.

            Heller got that right.

        2. wow, total fail.

          and note “artillery, combat aircraft” etc etc are not “arms”. Cannon weren’t arms in 1775 nor are Stinger missiles today.

          If you don’t understand what arms are then don’t trot out totally specious arguments about what the 2A says.

          To “keep” and “bear” arms.

          Yes, the right protects the keeping, as well as the bearing.

          I may have issues with Heller but they got the core decision correct.

        3. the term “arms” as used in the Constitution is weapons of military usefulness able to be carried about and brought into use by an individual acting alone. In other words, your larger military only weapons are not “arms”. That said, many devices that are restricted by common use and law to military only are wrongly prohibited the individual. Yes, I should be able to own and use as I see fit a BMG Fifty full auto. An F 22, not so much. Also bear in mind the concept and use of “letters of marque and reprisal” of the time. Tosses a bit of wa wrinkle on your argument.
          No, a state, nor the FedGov, have no right to icense “private possession”, as the private individual possessing IS the militia. Nor can that state make any declaration of conditions under which training can occur. Sure, the state can, and perhaps should, restrict discharge of weapons within reasonable distances of dwellings, but that needs to be a blanket restriction, and reasonable, and uniform.

          1. Lastly, “every terrorist” coming here and “infringing on the peace of our society” is not only illegal (laws regarding travel into the country), if they are making war upon the states or its citizens, they are a foreign enemy and thus to be dealt with by the local militia where they are perpetrating their evil. This is a red herring, and not valid. In fact, the possibility just this might occur is precisely WHY the Constitution commands that THE PEOPLE shall have the right to arms, that said PEOPLE will be equipped and trained to deal with this specific threat… and any other threat compromising “the security of a free state”. The maintaining of that security is the specific job of THE PEOPLE, whoever we are, and wherever we find outselves.

        4. Heller specifies BEARABLE arms. Try lugging around a howitzer.

      2. Sorry, but you are incorrect. The 2A protects the militia and a right to keep and carry arms by non-militia citizens for defense of self and state. See: the entire history of the 2A.

        1. The first clause of the 2A actually does nothing except express an idea.

          The 2nd clause may “protect” the militia in that if you have an armed populace you can have a militia, but the first clause has not prevented the Congress from failing to keep up the militia.

        2. See the plain English of the 2A –

          to “keep” “arms”,

          and to “bear” “arms”.

          the 2 verbs refer to the same noun, the weapons must be bearable. Cannon, warships etal are not “arms” as in the 2A.

          No one at the time would speaking of “keeping” a cannon in his house, but “arms” were kept in your house.

          Context.

        3. The militia argument has been legally moot since 2008. If you can’t keep up, take notes.

      3. Your right is not to possession of the gun as such but to do what possession legally allows.

        Not so at all. “Keep” means I get to OWN it, have it at my house, control it, and use it for whatever lawful purpose I wish. “Bear” means I can carry it about, deploy it, use it for any appropriate purpose. And that right is an INDIVIDUAL right.. remember that pesky second declares that the RIGHT accrues to THE PEOPLE. No, it does NOT state that the RIGHT accrues to militia. But even if it did. pray tell what IS the “militia”, if not the whole people armed and trained in the use of their weapons?
        Precisely WHO were arrayed against Jesse Adair and the three companies of ritish Regulars on the green at Lexington at dawn that Wednesday morning? And WHO were up on Punxatawny Hill to the north and east of Concord as Col Smith’s troops first took control of the North Bridge, then sent patrols along the road out to Captain Barrett’s farm to the eaSmith’s men marched past, the boys waving “real friendly like” to the marching lobsterbacks? Any idea how many militiamen mustered out in response to the warnings brought by Paul Revere and Billy Dawes with news that “the regulars are out” between sundown Tuesday and sunup Wednesday? And WHO were those men? All fourteen thousand of them…….?

  11. Back when I lived in Michigan, open carry was unambiguously legal. The problem was that, in anti-gun jurisdictions, you would be nailed for concealed carry if your jacket swung in front of your holster, (Or merely was claimed to.) while you’d be hit with “brandishing” charges if you carried it in your hand in a manner intended to keep it visible.

    Concealed carry reform was seen as resolving this problem, because a cop who didn’t know you were armed couldn’t hassle you, and you couldn’t be charged with illegal concealment if you were licensed to conceal, while you could still legally carry in the open.

    I’m ambivalent about which is better: On the one hand, concealed carry has the advantage of not disturbing people who are phobic about guns, or just inclined to cause trouble if they see you carrying. And it eliminates the prospect of a criminal preemptively taking you out.

    On the other hand, open carry has the potential to clear up that phobia, by causing people to frequently see armed citizens under peaceful circumstances. Eventually they’d just get used to it. One of the greatest media triumphs of the anti-gunners was basically eliminating media portrayals of non-police legally and peacefully armed.

    I guess the bottom line for me is that, from an originalist standpoint, it IS open carry that’s the protected right. But it’s nice to have concealed carry available, and the evidence is that there’s no real downside to it.

    1. One of the advantages to conceal and carry is that the criminals can’t tell who is carrying and who isn’t. That allows people like me who don’t want to mess with carrying a gun to free ride the benefits from those who do.

      1. How is this an advantage? A concealed carrier appears identical to an unarmed potential victim.

    2. As a social matter, concealed carry lets women (who, as a class, have more need for mechanically-assisted self defense than men) have the convenience of keeping their gun in their purse.

      1. Or other places too. I’ve seen some unique places used by women for their cell phones and my cell phone is only an inch less wider than my Springfield XDS.

    3. “Bearing” the arm – that is, carrying it somehow – is the protected right. A law allowing only concealed carry would be consistent with that right, if one did not have to pay or fee or wait for a bureaucrat to give you permission to carry concealed, and if (unlike formerly in Texas) the law wasn’t written to allow cops to look for any break in the concealment and arrest citizens for that. Open carry would be consistent with that IF the right to open carry was actually protected. That is, if police chiefs that instructed their officers to harass open-carriers were going to prison for conspiracy to violate civil rights. But instead, the courts in Michigan have made it well-nigh impossible to even sue for monetary compensation for that harassment. So we neither have the effective right to open carry, nor a full right to concealed carry…

  12. Show me in the Second Amendment where it says you can have a gun in FDE!

    The other day in comments, some jackass straggled in here and suggested that the courts should clarify exactly what is and what isn’t outside the bounds of free speech–so everyone can know ahead of time and no one need worry about saying something that’s outside the rules and getting fired for it later.

    Of course, that’s stupid. The government has no business drawing lines between speech that doesn’t violate anyone’s rights and . . . other speech that doesn’t violate anyone’s rights.

    I fail to see how carrying concealed or open, per se, violates anyone’s rights, and, therefore, the government has no business getting involved.

    If you’re open carrying on someone’s property and refuse to leave after being told to do so, then you’re trespassing. If you violate someone’s rights wit a gun, you should be charged with assault, robbery, murder, or whatever is appropriate. If the act in question hasn’t violated anyone’s rights, then the government has no business getting involved.

    1. Except that several state right-to-arms provisions, e.g., Colorado’s constitution, explicitly distinguish between open and concealed carry and state right up front that a right to carry is not a right to carry concealed. I understand the problem posed by the weather, but it gets just a snowy in Colorado as it does in New England, and that has not deterred judges from making the distinction and ruling that carrying concealed can be made illegal.

      For why, see my analysis below.

      1. But there is no good reason to differentiate the two, and hence those bans violates the 2A (which does not and only specifies “bear arms”).

  13. I can get a carry permit in Washington State by showing up at a police station with $50.

    Shameful flyover state.

    1. I suppose it’s a good thing they don’t make you pay $50 for a free speech permit.

    2. Flyover on your way to Vancouver?

    3. That’s why carry permits are racist.

    4. Also, you forgot to add “getting a background check and your fingerprints taken”.

      1. I think they’re requiring DNA as well. Glove up!

        1. No need for me! I’m done as soon as they start fondling my fingers for the prints.

      2. Don’t worry. It will be a long time before they subject gun wielders to anything like the scrutiny they apply to school bus drivers. Fingerprints. Background checks. Annual medical exams from state-certified examiners (twice a year over 70). Surprise drug tests up to 4 times per year.

        I note that as a supporter of carry permits, open or otherwise. I like carry permits because they amount to gun registration that gun owners actually want to sign up for, instead of evade.

        Incidentally, in the 1970s, in rural Idaho, I not infrequently found myself hitchhiking. To my surprise, I discovered my prospects improved a lot if I was carrying a rifle, and displayed it conspicuously as I stood by the road.

        Also in Idaho, a buddy and I used to ride through Boise in his open Jeep?him driving and wearing a shell-laden hunting vest, me dressed the same, and holding two shotguns upright on the floor in front of me. We used to cut through town if we decided to give up on pheasants, and instead go up in the hills to try for chukars.

        He was from Chicago. He looked at me as we circled the state capitol building one day, and said “In Chicago, they would cut your balls off for doing this.” That took me by surprise. It hadn’t occurred to me that anyone would think it noteworthy.

        1. When I was a kid it was rare to NOT see a pickup truck with a gun rack in the back window that did not have at least one rifle. Today you do not even see an empty gun rack. The problem is not the person carrying, the problem is the anti gun zealots who think their “rights” supersede the rights of every other person on the planet.

        2. Non sequitur. Driving a school in not an enumerated right incorporated against the states under the 14th Amendment due process clause.

    5. $50
      + one of a limited number of photo IDs (considerably more limited than those that can be used to vote)
      + fingerprints
      + background check
      + a 30-60 day delay
      + you need to do this again every 5 years.

      I’m curious which other constitutional rights you have to go through this much trouble to exercise?

      1. Which other constitutional rights confer the power to summarily kill someone, and put the the rights holder on his mettle not to use that power?

        Are you really puzzled why there would be a difference?

        1. That’s irrelevant. How “powerful” the right is not germane. Is it a constitutional right? Then it gets the same protection as the other one.

          1. Patrick, an outlier view doesn’t become commonplace just because a few people repeat it a lot.

            1. And a constitutional right shouldn’t be eroded because some people (even a majority) find it scary or distasteful.

              Earlier, you disagreed that the 2A had anything to do with individual self-defense. Do you also deny that it is an individual right?

              1. Self-defense is an individual right. And it was seen that way in the founding era. But the founders did not put arms for self-defense into the U.S. Constitution. There were lots of rights and customs current in the latter 18th century which went unmentioned in the U.S. Constitution?mostly by happenstance, I would guess. But I doubt leaving armed self-defense out was happenstance. It’s simply too hard to imagine the slave holding founders endorsing and ratifying a document which they would expect anti-slavery northerners to turn against them.

                Even at the time of the Federal Convention, southerners were extremely defensive about all threats of that sort, and about permitting anything which would inconvenience or embarrass slavery as an institution. I can’t see southern slave holders ratifying armed self-defense as a universal principle in the federal constitution, when they could tailor the principle in state constitutions and state legislatures to fit their peculiar customs?thus closing the door on any and all interventions from outside their own states.

                1. So your answer to my question is “no”?

                  1. Your question: Do you also deny that it is an individual right?

                    My answer: Self-defense is an individual right.

                    Your response: So your answer to my question is “no”?

                    My response: WTF?

                    More generally: ?????????????????????????????

                    1. You’re an idiot. I’ll help you:

                      Rossami listed multiple hurdles one must jump through to get a carry permit (and exercise a constitutionally-protected right).

                      You then argued that this makes sense?because this constitutionally-protected right is particularly dangerous.

                      I then said?who cares? If the right to bear arms is an individual right (not a collective right), your feelings about its scariness don’t matter. As such, I asked if you believed the 2A protected the individual right to keep and bear arms.

                      You then prattled on about the Founder’s intentional decision to leave out “arms for self-defense.”

                      It was a non-answer to my question.

                2. the founders did not put arms for self-defense into the U.S. Constitution.

                  No they did not. But they DID put “ARMS” in the Constitution. The fact they did not specify their manner of use, possession transport, carriage, who may have them, what tney may/mayn’t have, signifies they meant to impose no specific restrictions on the ownership or use of those arms. Those guys were neither lazy nor stupid. They meant exactly what they said…
                  the RIGHT of the PEOPLE (note: not militia, but PEOPLE) to KEEP (own, possess, buy, sell, control) and BEAR (carry about with them as they saw fit, and use them however they saw fit) ARMS (weapons of military usefulness and able to be carried about and put into use by a single individual)

                3. Stephen,

                  I can easily see Southern slave holders ratifying armed self-defense as a universal principle because they considered slaves as property NOT as people and therefore slaves had no Rights. Not to mention that Southern slave holders would also want to ensure they had the Right to Keep and Bear Arms to oppose Federal and/or Northern aggression.

        2. Dude, fuck you and your hissy-fits. Self defense is the paramount human right, and only tyrants try to forbid it.

          -jcr

          1. JCR, you are losing coherence. Rude, too. I’m not a tyrant. I’m not trying to forbid self-defense. Indeed, when you posted your outburst, you could see my endorsement of self-defense in the comment right above your own.

            1. Fuck off, slaver.

              -jcr

        3. since the power of the pen or spoken word can ruin one financially, socially, or end his freedom behind bars, is there really that much difference?

          you also wilfully fail to recognise that things like hammers are used to kill humans several times more often than are firearms. Do you favour a mandate for Mother May I Cards to buy a Vaughn 20 ounce wafflefaced framing hammer and bring it about with you as you travel?
          or how about edged weapons?

          Hey even bare hands and feet are used to kill humans more often than are guns. Do you favour their licensing as well?

        4. Irrelevant.

      2. State law mandates that the Mother May I Card MUST be deposited in the US Mail within thirdy days of the date of application. Seattle and King County, for many years, developed a snotty habit of mailing it on day twenty nine… just because they COULD be jerks and do it.

        My county has so far had my new/renewal Mother May I Card in my hand in five days. Most of that time was spend riding about in a big white truck with a disgusting cartoon of an ill eagle emblazoned on the white side of the truck in red and blue.

        My renewal non resident Mother May I Card from Oregon shocked me and arrived three days after I appeared and suffered the infringements at the sheriff’s office.

        To answer your final question: NONE. But until we manage to get the laws changed the infringement is about as light as it gets. We in Washington have no further requirements. No training mandate, no storage requirements, no magazine size specifications, no “feature” restrictions, no DNA swabs or iris scans, no insurance requirements……. and few restrictions on where one CAN lawfully carry concealed or openly. Oh, and open carry has no permit requirement. And strong legal precedent has been set regarding things like brandishing, momentary unintentional revealing or concealing i(if open)

  14. One of the problems w/ a CCP is that you are instantly in a myriad of local, state and federal databases. When the Ds inevitably return to power, they’ll be kicking your doors in first.

    1. They won’t be kicking in many doors before we’ve got a civil war on our hands. Remember the militia movement? It could be back really fast.

      1. Back?? LOL There are more guns in the hands of jack pine savages in Michigan neighborhoods than the police armory. When Michigan passed conceal carry the car jackings went to zero, just as they did in Florida.

        1. Merely a statistical anomaly

    2. You assume police will enforce such laws. When NY passed it restrictive gun laws, many sheriffs and police chiefs in the north part of the state openly said they would refuse to enforce them. In addition, when Democrats were in power and started their push for more gun control, many state legislatures passed laws which stated any federal law restricting gun rights would be considered null and void. The major problem for Democrats who want to push gun control is they have set a precedent that cities and states can openly defy federal law related to immigration. In addition, Federal courts have supported them but there is no Constitutional right for a non citizen to enter the US. Since 95% of US is legal precedent, it will be very difficult to argue cities and states can ignore laws which impact non citizens but must enforce laws which deny US citizens a right enumerated in the Constitution. Besides, recently when I was stopped for speeding, the officer saw my LTC (license to carry, I live in Texas) and asked if I had a firearm in the car. At the time I did not and when I told him I did not, his response was simply “Shame on you”. My point is just because the police you see on TV and see quoted in print are rabidly anti gun does not mean all or even a majority feel the same way.

  15. There should be no, and there is no distinction between open and concealed-carry. If I live in a hot-state or its summer, a gun on my hip is being openly-carried. If I live in a cold state or its winter, such that i have to wear a coat, then my firearm is suddenly being concealed-carried? No.

    Nothing about my Rights changes with the weather.

  16. I have some experience with bad people in low places. I have the following opinions:

    1. It would be nice if no one ever had a gun in a public place. Or felt like he needed one in a public place.
    2. Bad guys will always have concealed carry, with or without a permit.
    3. Almost all folks who go to the trouble of getting a concealed carry permit are good folks who don’t start a problem over guns.
    4. Personally, since I am a bit of a smart ass, I’d prefer that anyone who wants to carry be REQUIRED to carry it openly under penalty of law. I don’t want to mess with some badass if I don’t know if he’s strapped.

    Just sayin’

    1. I’m confused as to how your rights are being infringed when my popper is concealed. What you “prefer” means zip.

    2. I don’t want to mess with some badass if I don’t know if he’s strapped.

      So… you want to be an asshole without worrying if whoever you’re picking on is capable of defending himself?

      Fuck you.

      -jcr

    3. The problem with your 4 is 2; The only badasses you need to know are “strapped” are the ones who’d carry concealed even if it was illegal.

      Unless you’re a mugger, of course, in which case I can see your reasoning.

    4. Living in Texas, I have the option to concealed or open carry. I prefer concealed carry 98% of the time, not because I do not want the bad guy to know I have a weapon but rather I prefer not to be accosted by anti-gun zealots who have no idea what they are talking about and yet want to get in my face about carrying a gun.

      1. I prefer not to be accosted by anti-gun zealots who have no idea what they are talking about and yet want to get in my face about carrying a gun

        Thereby acknowledging that they do not honestly view your carrying a firearm as dangerous or disruptive to public order.

        1. No, I am saying I do not want to listen to the crap of radical and uniformed idiots who think their “rights” are more important than everyone else. You comment is exactly the type of stupidity I am talking about because how is my carrying a firearm for protection “dangerous and disruptive to the public order”? It is only dangerous if I were to use it irresponsibly and like most people who carry, I sincerely wish I never have to use it in self defense. Second, the only way it is “disruptive to the public order” is exactly my point in that idiots like you see it and start a argument about my right to carry. The fact you respond to my comment as you did only proves the point I was making which is the real issue is ant-gun zealots are incapable of having a rationale discussion about guns and do not care about any opinions other than their own.

  17. Regardless of the ultimate outcome at the 9th, this case will go to SCOTUS for consideration, and it is about time for them to explain in very simple but precise language, what position they expect the District and Circuit Courts to uphold.

  18. I don’t think the headline has it quite right. Remember that this was a 3-judge panel decision. As such, they were bound by the en-banc Peruta decision in 2016. The two decisions together say that states must allow either concealed carry or open carry (or both). What they cannot do is prohibit both.

    In other words, the Ninth Circuit has so far concluded that California can prohibit concealed carry and Hawaii can prohibit open carry. The state laws do not have to be consistent with each other as long as they both comply with the Supreme Court’s Heller decision and allow some form of carry.

    Of course, the Ninth sitting en-banc would not be bound by the Peruta decision and could overturn or modify this panel decision. I’m not sure what path they could do so but… It is the Ninth…

    1. “In other words, the Ninth Circuit has so far concluded that California can prohibit concealed carry and Hawaii can prohibit open carry. The state laws do not have to be consistent with each other as long as they both comply with the Supreme Court’s Heller decision and allow some form of carry.”

      Everything you said is wrong. So far the 9th circuit has (correctly) concluded that concealed carry is not a right under the Second Amendment but Open Carry is.

      The Heller decision cannot be read to say that some form of carry must be allowed. Anyone who reads “Open Carry is the right guaranteed by the Constitution” plus “Prohibitions on concealed carry is not a right” to mean that “Some form of carry must be allowed” is suffering from some mental disease or defect and should not be allowed anywhere near a firearm.

  19. Judge O’Scannlain’s analysis is correct (and the Ninth Circuit has been hinting at moving to that position for some time).

    Essentially the problem with concealed carry is this: Any fight between secretly armed combatants inevitably must become a fight for the gun (the “winner” wins; the “loser” dies).

    Now, it can be argued that the same considerations apply when arms are carried in the open; however, the open carrying of arms at least places everyone on warning that the person is armed, and that, itself, becomes a deterrent to joining in a brawl.

    So, the practice of open carry is much safer for all concerned.

    The concern of those who elect to be alarmed by open-carry rules is simply another one of the gun-grabbers’ devices for restricting the right. For, as Colorado’s constitution makes clear, the right to bear arms does NOT extend to the carrying of guns concealed. So, if gun-grabbers can stop open carry by custom, they only need stop concealed carry by statute to effect a total carrying ban.

    As Judge O’Scannlain pointed out, this defeats the plain language of right-to-arms provisions.

    1. “Any fight between secretly armed combatants inevitably must become a fight for the gun”

      I would think any fight between openly armed combatants would inevitably become such, as you’d know going in that there was a gun to fight over. With secretly armed combatants, the fight would likely be over in the same moment they were aware there was a gun to fight over, it would be pulled out and deployed.

      But the problem here is “any fight”; Who gets into fights as an adult, unless at least one of the combatants is a criminal? Statistics say that concealed carry permit holders aren’t getting into fights at any significant rate.

  20. Here in Teller County CO , open carry hardly causes a second glance in the grocery store .

    1. A few years ago, Albuquerque had a problem with people moving from more restrictive States to open carry NM and they kept calling police, reporting someone with a firearm. Most finally stopped calling when local LEOs would ask them questions and tell them that NM was an open carry State.

      1. The fact they called police is the root of the problem. If a person is openly carrying a gun and not engaged in any threatening behavior, why would a rational person call the police? There is no problem and no threat of harm to them. The issue is these people have been conditioned to think that anyone with a gun is a mass shooter in waiting and therefore must be disarmed to “protect the public”. In addition, they live4 with illusion that police exist to “protect” the public when if you objectively look to the work of police, you realized they investigate crime and arrest the perpetrators. However, you cannot investigate a crime until AFTER it has occurred and therefore they protect nothing. They may protect the public from a person committing additional crimes in the future, but that does little for the first victim. The other thing I think is hilarious is when these same people talk about using a baseball bat or other similar weapon for defense in total ignorance of just how bloody and personal such a weapon is when used vs a gun.

  21. Hasn’t the theme song of the ninth circuit been ‘ Send in the Clowns for over twenty years? Just saying..

  22. Since this is only a 3 judge decision, and in the 9th Circuit to boot, it doesn’t mean much except to those people with the misfortune of both being in the 9-th circuit and being in a restrictive state.

    The full court could hear it, and decide anything they want. Given the 9th’s radicalism, they’d probably just throw away the 2nd Amendment.

    Then a circuit split could lead to the Supreme Court.

    The main thing interesting about this ruling is that *any* panel of the 9th upheld a Constitutional right other than that of killing your unborn child.

    1. I think forcing the SCOTUS to rule on the issue was the actual intent of the ruling since they have opted to punt on every gun rights case that has made it to the court so far after McDonald.

  23. Hihn here yet? I need to brush up on the part where Scalia says we can only carry a musket.

    1. I’m not sure I’ve ever seen someone so aggressive in citing a quotation that says the exact opposite of what they are trying to prove. It’s almost impossible to argue against.

      1. Maybe he was –finally– committed.

    2. Damn it, why are you asking for more Hihnsanity from Hihnsane?

  24. I open carry as much as I can, simply to let people see that those who legally own and carry guns are not the wild, scary monsters that they’re widely portrayed to be. I’ve never had an issue with it. Of course, this *is* Texas…

  25. [quote]Taken together, the two decisions imply that it is constitutional for states or cities to ban concealed carry but unconstitutional for them to ban open carry. That distinction is consistent with the views of 19th-century legislators and judges but does not jibe very well with contemporary intuitions about which kind of arms bearing is more threatening.[/quote]
    I suspect that “contemporary intuitions” are different for gun owners than for non-owners.

    Gun owners generally respect the right to carry, and generally do not see concealed carry as more threatening. But non-owners — the people who support all those restrictions on gun ownership — are somehow made more nervous by the notion that a random person on the street might have a concealed handgun. Perhaps because they know to be polite to the guy with the gun on his hip, but if anybody might be armed, how do you know who might take offense and blow your head off over a trivial offense?

    This is, of course, not particularly rational. You should be polite to everyone anyway.

  26. (continued from previous comment)

    My own take is different: I don’t own any firearms. I did for many years, but decided that if I wasn’t going to practice with them — and clean them periodically — then I should sell them. They now have a good home with someone who will take care of them. But my take is: the fact that _anybody_ might be armed acts as a deterrent to criminals. Suppose you go into a liquor store to rob it and there are three other customers there. You can hardly cover all of them with one gun, and if one of them is heeled, you’re going to have a big hole in your torso.

    1. Those opposed to concealed carry will argue they have a “right” to know who is carrying a gun, yet when asked about open carry, those same people will profess a “right” to feel safe. Not surprisingly the only way for anyone to guaranteed their so called “rights” is for everyone to be barred from carry a firearm for any reason in every location.

  27. A reasonably through study of the era of our War for Independence clearly reveals that pistols of various sizes, bores, and type, were commonly owned and carried about, mainly by the men, but even by some women. These were carried, at the bearer’s option, openly or concealed. Even a large heavy “horse pistol” could readily be well covered by the long-tailed coats of the day or a workman’s dungarees. Small pistols were often kept in the tops of boots, or in a pocket of either trousers or coat. No one ever thought it strange that anyone would carry a concealed handgun or two about with them. Many military men were always armed with one or more handgun. Since they were arms of military usefulness and in common use, and (obviously) able to be carried about and put into service by someone acting as an individual, they fall well within the range of “arms” concerning the use of which that Second Article of Ammendment declares “shall not be infringed”. ANy court finding otherwise is errant. And any decisioni restricting any of this is a bad decision, null, void, and of no effect.

  28. I have to disagree that this ruling is shocking since the 9th circuit ruled an individual does not have a right to carry a firearm concealed. Basically the logic is if you decide to carry a firearm, then those around you have a right to know you are carrying it. Although I disagree with the logic, I do understand it. What I find ironic is the case was fought by anti gun zealots who hoped the court would rule there is not constitutional right for an individual to possess a firearm outside the home for any reason and they lost that fight. However, the real surprise is the total silence about this ruling on Broadcast news, left leaning websites and other progressive media. NONE of them have ran a single story about this ruling which of course is contrary to their anti gun narrative.

  29. The 9th circuit is a criminal scam, just like the Supreme Court itself and the rest of the so-called “justice system”. REALITY CHECK!:”Because they are all ultimately funded via both direct and indirect theft [i.e.taxes], and counterfeiting [central bank monopolies], all governments are essentially, at their very cores, 100% corrupt criminal scams, which cannot be “reformed”, “improved”, or “limited” in scope, simply because of their innate criminal nature.” http://onebornfree-mythbusters.blogspot.com/ Regards, onebornfree

  30. A side comment on RKBA: while it was legal to carry arms in early America (before England started imposing limits, and after independence), most people didn’t carry guns in cities.

    It wasn’t illegal. It just wasn’t done. Oh, if you were going somewhere dangerous, you’d carry. Going into a rough part of town? Sure. Going into a tavern for a glass of rum? Probably not.

    This is what the NRA overlooks, and what leads to the label “gun nuts” for some firearm owners (and unjustifiably applied to *all* firearm owners). Laws like Texas’s allowing guns on University campuses have little to do with gun owners rights, and a lot more to do with giving University students and professors — most of whom are those hated “liberals” — a poke in the eye.

    1. It simply wasn’t as convenient in those days, so that’s not surprising. Guns were very awkward in the colonial period. I have a .50 caliber sidelock percussion cap pistol of a size similar to flintlock pistols of the time. It’s a big heavy thing, and a flintlock version was especially hard to bring into use quickly; it’s really hard to keep the priming pan on a flintlock filled and ready for any extended period. Black powder is very moisture sensitive. A good-sized knife was a far quicker and more reliable self-defense tool and these were widely carried.

      As small derringers, percussion cap revolvers and eventually cartridge revolvers became available, the idea of the “pocket pistol” soon followed, and people did carry more often. But there was very little that would be what we would think of as convenient to carry until the post-Civil War era.

    2. If you’re a university student or employee who wants to carry, it is about your rights. When you’re not allowed to carry in the place you spend most of your day, it becomes inconvenient to carry at all. It’s dangerous to leave a gun in your car — you’re asking for it to get stolen. My daughter has a carry permit but she works in a hospital (prohibited place) so really doesn’t develop the habit of regular carry because she’s so often unable to. I, meanwhile, work from home and carry everywhere I legally can, which is almost everywhere.

  31. God dreams of becoming a Federal judge.

  32. The second amendment doesn’t say a thing about “openly” or “concealed.” It does say “shall not be infringed.” It’s simply logic that prohibiting either form of carry is an infringement on an unrestricted right to bear arms.

    It takes a lawyer to make it complicated.

  33. The issue is not if guns in public are limited to open carry only, the issue is can a state government essentially deny a person the right to defend themselves by banning all guns in public period by banning open carry and making the process for getting a license for concealed carry impossible. The problem in California, Hawaii and other anti gun states is the entire issue of forcing a person to “show just cause” to obtain a license for concealed carry. As we have all seen the only people granted such licenses are bodyguards protecting the wealthy and famous. Ordinary citizens are usually denied a license in about 98% of the time. All the decision said was, as a people, we have a right to self defense outside of our home and the government cannot deny use the right to use a gun for that defense since it is clearly a right granted by the Constitution and upheld by the SCOTUS in Heller and McDonald. The real issue will be when the first person is arrested in California or one of the other anti-gun states for openly carrying a firearm since the 9th circuit has said it is legal.

  34. “In 1840, for instance, the Alabama Supreme Court upheld a restriction on “the evil practice of carrying weapons secretly,” while making it clear that a comprehensive ban on public carry would be unconstitutional.”

    If by “comprehensive ban” you are referring to a ban on Open Carry then you are right. Unfortunately, the so-called gun-rights lawyers falsely claim that the decision (State v. Reid) held that bans on concealed carry are only permissible when Open Carry is not banned as well.

    The Reid court explicitly considered the hypothetical scenario where concealed carry was legal but Open Carry was prohibited and held “Under the provision of our constitution, we incline to the opinion that the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence.”

    Tellingly, in the last paragraph the court said there might be some circumstance where concealed carry might be a right but the court could not “conceive of its existence under any supposable circumstances.”

    Here we are, nearly 180 years later and nobody has been able to come up with a single circumstance where concealed carry would be “indispensable to the right of defence?”

    What we have today is what we had then, a bunch of cowards and criminals who carry concealed for “secret advantage and unmanly assassination.”

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