This is an open thread centered on what carrying guns in public means, in both practical and legal terms. Last week we introduced concealed carry law in our primer on The National Right to Carry Reciprocity Act. Some gun owners are asserting their legal rights under state law to carry guns public in ways that are alarming or frightening to others. Some of those frightened people call 911 when they see a gun in public.

Cartoon by Jen Sorensen - Gun nut or mass shooter
Constitutionally protected RKBA, political speech, or public menace?

How did we get here?

There has been a steady trend in state law over the past 30 years toward loosening restrictions on public carry. Some states allow both open carry and concealed carry, some states prohibit open carry, but allow concealed carry, and a few jurisdictions still literally or effectively prohibit both, (DC and Hawaii, respectively). The Supreme Court did not lay out in Heller or McDonald what legal standard should be used to assess whether restrictions set by state law fall within the scope of the Second Amendment.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333.

[my bold]

Examples of lawful purposes that are already recognized in state laws include public gun carry to a hunting range, to sport shooting events, or to a gunsmith. Neither case made clear where the court would set limits on registration, licensing, and permits to carry guns in public, either openly or concealed.

In a prior  Open Thread, we featured  Jeffrey Feldman's 2008 diary in which he explained his reasoning that the freedoms articulated in the First Amendment were intentionally placed first in the Bill of Rights because they form the foundation for all the freedoms that define American citizenship. He also explained what he saw as a key argument made in the minority opinions.

Individual Rights vs. Use
Both Breyer and Stevens argue that the problem with Scalia's ruling is precisely that it seeks to limit discussion of guns to a Constitutional question of individual rights when the issue that had hitherto been extended by the courts to the full question of use.  That's the big issue.  Stevens and Breyer dissent both to Scalia's method and its implications--the originalist approach which seeks only to talk about individual rights vs. the slew of earlier rulings in which the court talked about use. Whether or not one believes in individual rights is not the end of the issue, according to the dissents.  The issue is use.  
Long-time Kossack JR, (User ID 1882!), will join us to discuss the issue of public carry, and his diary from April 2010 that addressed the "Second Amendment/Open Carry Rallies" that were scheduled to take place in several cities around the country. That was a few weeks after the Supreme Court had heard oral arguments and more than two months before they issued their opinion in McDonald v. City of Chicago.  

Please join us below the fold for discussion with JR about your experience with open carry in practice and the legal limits of political speech. To add JR's original diaries to your stream, click on the ♥ or the word "Follow" next to JR's name.

Since JR first published his diary three years ago, some gun activist groups have staged other "Gun Appreciation" events, for example, at Starbucks, which had announced that they honor local laws that allow open or concealed carry.  

An Open Letter from Howard Schultz, ceo of Starbucks Coffee Company

... We appreciate that there is a highly sensitive balance of rights and responsibilities surrounding America’s gun laws, and we recognize the deep passion for and against the “open carry” laws adopted by many states. (In the United States, “open carry” is the term used for openly carrying a firearm in public.) For years we have listened carefully to input from our customers, partners, community leaders and voices on both sides of this complicated, highly charged issue.

Our company’s longstanding approach to “open carry” has been to follow local laws: we permit it in states where allowed and we prohibit it in states where these laws don’t exist. We have chosen this approach because we believe our store partners should not be put in the uncomfortable position of requiring customers to disarm or leave our stores. We believe that gun policy should be addressed by government and law enforcement—not by Starbucks and our store partners.

Recently, however, we’ve seen the “open carry” debate become increasingly uncivil and, in some cases, even threatening. Pro-gun activists have used our stores as a political stage for media events misleadingly called “Starbucks Appreciation Days” that disingenuously portray Starbucks as a champion of “open carry.” To be clear: we do not want these events in our stores. Some anti-gun activists have also played a role in ratcheting up the rhetoric and friction, including soliciting and confronting our customers and partners...

One of the most controversial groups, the "Constitution Security Force", a militia based in Gilberton, PA, (where open carry is legal) has staged rallies outside of city council meetings when their "commander" Marc Kessler faced disciplinary hearings. On September 19,"[b]y a 6-1 margin, the council voted to suspend Kessler with intent to dismiss, pending a public hearing." [See Diary by Christian Dem in DC].

A public city council disciplinary hearing was scheduled in Gilberton last evening, at which Chief Kessler was to call witnesses. After someone dropped their loaded handgun on the floor the meeting was adjourned without completing the council's business.

PA Chief's Hearing Halted When Gun Falls on Floor

GILBERTON, Pa. (AP) -- A hearing for a controversial Pennsylvania police chief was halted when a handgun slipped from the holster of someone who was in attendance to support the chief.... The hearing was stopped when the handgun clattered onto the concrete floor directly behind Kessler and his lawyer. The supporter was asked to leave the cramped hearing room.

Officials say they will reconvene the hearing in a larger location at a later date.
Kessler's attorney says officials at the meeting were concerned for the safety of everyone in the crowded room.

RKBA: Meaning by JR (Apr 19, 2010) (republished with permission)
Today, "Second Amendment/Open Carry Rallies" are taking place in several cities around the country, including DC (where organizers have hopefully succeeded in telling attendees NOT to bring their firearms--though apparently not everyone is getting the message).

So it seems like today--when armed individuals will be using their guns not as means of national or personal defense, but as props in their political speech acts--would be a good day to discuss something that’s been bothering me for some time now.  I’d like to take this opportunity to discuss the difference between "gun rights" and "the Right to Keep and Bear Arms," because contrary to popular opinion, these terms mean very, very different things.

[JR’s] disclaimer: Since I do not believe that more gun control is always bad for our electoral prospects, I do not consider myself a member of the DailyKos RKBA community--more like the gadfly on the wall. But in the spirit of respectful debate and inclusive dialog, several RKBA members asked if I would be willing to write this piece, and I happily accepted, and thank them for the invitation.  Think of this as contrarian guest-blogging. I also wish to note for the record that I am neither a lawyer nor an expert on Second Amendment jurisprudence, but rather a law student and gun owner who’s taken a recreational interest in the subject.


I’d like you to take a look at a a few photographs.

First, this classic shot that I think needs no caption:

Heston cold dead hands

I think we all know the context of this shot.  Heston repeated his "five words" at rallies and fundraising events around the country, frequently using this same long gun, which appears to be a single-shot flintlock.

Next, a buddy of ours from last summer’s "Town Hall" silly season:


That gentleman is Christopher Broughton.  He’s seen here toting an AR-15 and sidearm at an Arizona rally headlined by President Obama.  When asked by The Arizona Republic why he came so armed, he replied, "I want attention brought to the ideas that I espouse."  He was joined by about a dozen others in this action.

Last one, from a recent 2nd Amendment/Rand Paul rally in Frankfort, KY:

rand paul rally

This camo-clad individual was actually part of a larger group of militiamen (this one appears to have been a contingent of the "Oath Keepers"), most of whom were likewise sporting Rand Paul stickers and one of whom was a speaker at the rally along with Paul.
Now, this is a tricky question and a thorny issue, but when I look at these photos, I don’t necessarily see people exercising the Right to Keep and Bear Arms.  I see people carrying guns as political speech.  I believe those are not the same thing.


The Meaning of the Right to Keep and Bear Arms

When we talk about RKBA, we’re not talking about an unlimited grant of permission to carry however or wherever you want, own whatever you want, or fire whatever load you want.  RKBA is actually a relatively narrow right in the grand spectrum of gun rights. RBKA, in my view, is the right of the people to possess arms and carry them in case of confrontation, in order to defend themselves, other people in peril, and the State. That’s not just my view of the meaning of RKBA, incidentally, but also that of the 5-justice majority in DC v. Heller: see Scalia’s opinion for the Court, pages 10-11:

At the time of the founding, as now, to "bear" meant to "carry."  See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford).  When used with "arms," however, the term has a meaning that refers to carrying for a particular purpose—confrontation.  In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of "carries a firearm" in a federal criminal statute, JUSTICE GINSBURG wrote that "[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’ "  Id., at 143 (dissenting opinion)(quoting Black’s Law Dictionary 214 (6th ed. 1998)).   We think that JUSTICE GINSBURG accurately captured the natural meaning of "bear arms."  Although the phrase implies that the carrying of the weapon is for the purpose of "offensive or defensive action," it in no way connotes participation in a structured military organization.

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that "bear arms" had in the 18th century.  In numerous instances, "bear arms" was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to "bear arms in defense of themselves and the state" or "bear arms in defense of himself and the state."

He summarizes on Page 19:
Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.  This meaning is strongly confirmed by the historical background of the Second Amendment.  We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.  The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed."  As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), "[t]his is not a right granted by the Constitution.  Neither is it in any manner dependent upon that instrument for its existence.  The Second amendment declares that it shall not be infringed . . . ."
I think this is a pretty fair reading of what exactly the right in question, the Right to Keep and Bear Arms, really is: it’s the individual right to own and carry weapons for purposes of defense of self and others (including the State).

There’s a corollary to that, however: gun rights and activities that go beyond owning and carrying weapons for purposes of confrontation are not necessarily covered by the Second Amendment’s guarantee.

For example, restrictions on the types of weapons that may be owned or carried don’t strike me as inherently violative of the Second Amendment, so long as the citizenry still retains the general right to own and carry weapons sufficient for confrontation.  The right itself remains secure, just as the right to free speech remains secure even though certain forms of speech acts are unprotected (such as falsely shouting "fire" in a crowded theater or inciting a mob to riot).

In fact, unlike Justice Scalia and the Heller majority (see the bottom of page 54) , I think a more difficult question is raised in denying to felons and the mentally impaired the right to gun ownership.  Laws preventing these groups from ever owning a firearm inherently infringe on their RKBA.  (What do you say, 2A supporters: want to raise a little ruckus in defense of the gun rights of convicted felons and mentally impaired Americans?)


Non-RKBA Gun Rights

So what might be some of these gun rights that aren’t encompassed by RKBA?  Well, for starters, I don’t think the right to carry concealed weapons is included.  There may be certain state contexts where open-carry is prohibited and concealed-carry is the only way to effectively assert RKBA outside the home, but in general I don’t see how the core of RKBA is infringed by a requirement that guns be openly carried.

Ammunition restrictions are also not RKBA issues, in my view.  Ammunition cannot be withheld entirely, as that would prevent the people from bearing arms in defense of anything (not that an unloaded long gun doesn’t make a mean club; just ask any FPS gamer), but restrictions that prevent certain types of armor-piercing rounds from entering general circulation, or that require serializing ammunition to make it easier to trace, seem allowable under the Second.

Limiting the frequency of handgun purchases and the number that may be bought at any one time also seem not to violate RKBA (one area where I do disagree with the Heller opinion is that I don’t consider the Second Amendment to prevent the government from prohibiting handguns outright; Scalia offers his reasoning on page 57, citing neither federal case law nor any strong principle beside "lots of people use them" to justify invalidating blanket handgun prohibitions.  I think a more appropriate argument, though one that would require opening a door that the Court would shudder at touching, would be that the Ninth Amendment--not the Second--protects the ability of persons to engage in common forms of personal defense).

Magazine capacity limits also seem permissible to me, in addition to being good policy (in that they encourage a greater degree of care in firing shots--if it takes all 33 rounds from for a person to effectively defend themselves from an aggressor, shouldn’t we be a little concerned with where those first 32 rounds went?).

Now, to be sure, all of these issues may be fairly discussed as gun rights, and each state may approach them differently, with some enshrining guarantees that protect such practices and products in their own laws.  But when we’re discussing the actual, honest to goodness, bona-fide RKBA, I don’t generally see these as included issues.
And, of course, there is one more question on the table:


The Use of Guns as Speech Objects

All this brings me back to the photographs at the top of this entry.  

In the Heston photo, that gun is being used exclusively as a political prop at a political rally to make a political point: there is nothing remotely connected to the defense of self, state, or others in Heston’s carrying of that rifle.  (I doubt if there was even an ammunition load for it anywhere in that facility.)

The photo of Christopher Braughton could go either way--a person might be reasonably concerned about the risk of violence at a political rally during a contentious debate that carrying a firearm feels necessary for his protection--except that he explicitly told people his point in carrying was to make a political statement, and he was joined by around a dozen others who had organized and coordinated their openly carrying for that same political purpose.

The third photo, taken at the Frankfort rally, is the most difficult to pigeonhole, in my opinion, since the application of the sticker (and the rather theatrical context of the Oath Keepers’ presence at this political rally) makes it look like the rifle is being used far more for political speech purposes than for personal or national defense; however, absent explicit or obvious evidence to that effect, the benefit of the doubt should caution against reflexively typing it as an exercise in political speech.

Now, I don’t see where in the Second Amendment’s language the right to use a gun as a political speech object is protected, especially in light of the Court’s confrontation-oriented opinion in Heller.

Today’s rallies, like the one in Frankfort last month, will feature armed mobs, not mustered for any defensive purpose, but rather to use guns as expressive devices for speech purposes.  They aren't motivated by a desire to protect hearth and home, or kin and country--they've come for the express purpose of making a political statement.  
Given that no member of the Court--either in the majority or one of the dissenting opinions--extended RKBA to cover guns as props for political speech, and considering that RKBA has never been interpreted in the past to cover such a purpose, I think the question of whether or not armed rallies like the ones taking place today are allowable is a policy call, not governed by any Constitutional imperative.  States should be well outside the prohibitions of the Second Amendment (assuming, as I have for purposes of this post, that the Second Amendment will be incorporated against them later this Supreme Court term) to limit armed mass actions, with the exceptions of musters for lawful defensive purposes (gathering to protect the home of a person receiving death threats, guarding a political or religious center from threatened attacks, repelling a force of Redcoats, etc.), and ones where the arms-bearing is not the result of coordinated and intentional action, but the natural and organic outcome of a non gun-oriented rally being attended by persons independently exercising RKBA.


Constitutional counter-arguments

I’ll be the first to admit that drawing the line between carrying for purposes of confrontation and carrying for purposes of speech is tricky (if it’s even practically possible to do at all).  As the Frankfort photo above demonstrates, it can be tough to determine if a gun is being used by a speaker to defend himself in case of confrontation at a rally, or if the gun is a mere speech object.   Crafting a statute that navigates those shoals without impairing the legitimate protections of RKBA may well prove impossible.
There’s also a paradoxical concern about restricting open-carry as political speech: if people wish to openly carry at a political rally on a subject other than gun rights (for example, if the Westboro Baptist Church jerks decided to take firearms with them for self-defense against counter-demonstrators), then they would be protected under RKBA; but if people wanted to openly carry at a rally specifically meant to endorse open-carry laws or other gun rights (such as today’s events), then they might be treated differently.  Is it reasonable to say that the mere fact that you're attending an open carry political event is cause to prevent you from carrying openly?  There could easily be an argument made that such a restriction would be a little more like Joseph Heller than Dick Heller.  



I don’t expect everyone to agree with my examples or my analysis on the whole, but I would like to get started a conversation about the distinctions between "gun rights" in general and "the Right to Keep and Bear Arms" in particular.  The Second Amendment protects a core right from infringement, and while the states may go beyond that core in establishing or recognizing gun rights, they generally do so because they wish to, not because the Constitution requires it.  We Second Amendment supporters should remember that not every infringement on gun rights is an infringement on the gun right, RBKA.  Only laws that prevent citizens from exercising the basic right to carry weapons for purposes of confrontation--not limits on magazine capacity or ammo types, nor restrictions against short-barreled shotguns or fully automatic pistols, nor even registration requirements or ammunition serializing--should be challenged based on the Second Amendment.

Nor should we allow advocacy of the RKBA to be conflated with advocacy of other gun practices and laws beyond that core, though we may wish to endorse such policies for their own sakes.  The right as enshrined in the Constitution is an essential personal and collective liberty.  We should protect that limited, specific right with a singular focus.  The Second Amendment requires that the constitutional analysis of a law affecting gun ownership, gun possession, gun carrying or gun usage simply investigate whether the core right to own and carry guns for purposes of confrontation is substantively infringed.  If that core right remains intact, then we properly should examine the law as a balance of policy interests, not as a constitutional question.  

In so doing, we’ll not only have a clearer conversation about just what rights are and aren’t enshrined in the Constitution, but we’ll also have more productive debates over policy preferences, including discussions of relevant statistics and practical concerns raised by proposed legal changes.  And establishing RKBA as the core guarantee of the Second Amendment, without continual and inaccurate appeals to the Second Amendment in defense of other gun-related rights, will help narrow the battlefield of ideas enough to ensure that the very heart of our gun ownership tradition remains protected for future generations.

Thanks for reading, 

Sponsored by the Firearms Law and Policy Group

The Daily Kos Firearms Law and Policy group studies actions for reducing firearm deaths and injuries in a manner that is consistent with the current Supreme Court interpretation of the Second Amendment. We also cover the many positive aspects of gun ownership, including hunting, shooting sports, and self-defense.

To see our list of original and republished diaries, go to the Firearms Law and Policy diary list. Click on the ♥ or the word "Follow" next to our group name to add our posts to your stream, and use the link next to the heart to send a message to the group if you have a question or would like to join.

We have adopted Wee Mama's and akadjian's guidance on communicating.  But most important, be kind, for everyone you meet is fighting a hard battle.


1Membership in the Firearms Law and Policy Group is not dependent upon personal opinions about any specific gun laws and does not imply agreement with LilithGardener or JR. Our guiding standard is the constitutional right to keep and bear arms as set forth in Heller and McDonald. Members of the group hold a range of opinions about the current Supreme Court interpretation of the Second Amendment.

Originally posted to Firearms Law and Policy on Fri Oct 11, 2013 at 12:05 PM PDT.

Also republished by Shut Down the NRA, Repeal or Amend the Second Amendment (RASA), and notRKBA.


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