The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Open carry vs. announced carry


As I noted yesterday, the Florida Court of Appeal held that there's a general Second Amendment right to carry guns in public, but the state can choose whether to allow only concealed carry, allow only open carry, or allow both. I noted that this is probably a sound interpretation of the Second Amendment, and especially of the Florida constitutional right to bear arms (which was also raised by the challengers).

But it seems to me that, under the First Amendment, the state can't ban someone from wearing a T-shirt or a large pin saying "I'm legally carrying a concealed handgun" at the same time that he is legally carrying a concealed handgun. The T-shirt or pin wouldn't be a punishable threat of illegal conduct, because it is specifically referring to legal conduct, and it offers no reason to think that the wearer is going to use the gun illegally. And while wearing such an item might draw police attention, so would legal open carry.

Let's take this sort of "announced carry"—concealed carry coupled with a statement that one is carrying—a step further. Say that some gun rights enthusiasts start wearing transparent plastic gun-shaped things strapped to their hips, in transparent holsters—something that is obviously not a real gun, but is symbolic of a real gun. (It should certainly not look like these T-shirts with realistic-looking holsters and guns printed on them.)

When asked, the wearers explain that these are symbolic of the fact that they are indeed lawfully carrying a concealed gun. The news gets out, and wearing such a transparent item on one's hip will become understood as equivalent to a T-shirt saying "I'm legally carrying a concealed handgun." (Compare how wearing particular ribbons or other symbols becomes understood at times as a particular kind of statement.) I likewise think this can't be banned; the only reason to ban the holster would be the message that it sends, which would likewise violate the First Amendment.

On balance, the effect wouldn't be terribly different from open carry, it seems to me. To be sure, some people might lie and wear the transparent plastic model (or the T-shirt or pin) when they're not actually carrying a gun. But on balance, the person wearing the gun-carrying symbol would be using the symbol to convey to the public much the same that open carry conveys: I have a gun on me, though I'm claiming (quite likely correctly) that I'm carrying it completely lawfully.

I'm not opining here on whether this would be good for society or bad, or good for the carriers or bad. But I just thought I'd raise this as a thought experiment, to see whether people think it sheds any light on the open carry controversy.