an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In Tuesday’s Los Angeles Times, I have an op-ed arguing that California should not enact a proposed law that would prohibit people from openly carrying firearms in public. The problem with the ban is that it might lead, ironically, to more people carrying guns in public. Which would you prefer: seeing an occasional gun openly displayed on the hip of someone standing in line at Starbucks, or having many more people carrying hidden guns every time you go out? This uncomfortable question is one that supporters of gun control must now ask themselves. And the reason, of course, is the Second Amendment. As readers of this blog know, in District of Columbia v. Heller, the Supreme Court held that the Second Amendment guaranteed the right of individuals to own firearms for self-defense. Although that decision only involved guns kept in the home, it's likely that the right to have a gun for self-defense will be extended eventually to the public streets. The text of the amendment, after all, refers to “keep and bear arms”—and the Court said that bearing arms was not limited to military service. And while the Court pointed to several state court right-to-bear-arms decisions from the 1800s that upheld complete bans on concealed carry of firearms, those cases rested explicitly on the fact that people had an easily available alternative: they could carry weapons openly. Although alarming to many people today, open carry was once seen as more honorable and civilized than carrying a hidden gun. Only a scoundrel and a thief would hide his weapon.
If the Supreme Court eventually holds that individuals have a right to defend themselves with firearms in public, then states won’t be able to prohibit both open and concealed carry. One or the other will probably have to be allowed. In most states, that’s not an issue because they have relatively liberal concealed carry permitting laws. (Heller implied that permitting was constitutional.) But in numerous major cities, like Los Angeles, New York, and Washington, D.C., concealed carry permits are nearly impossible to obtain. Law enforcement often requires that individuals show they have been personally threatened, carry large amounts of cash, or have some equivalent special need to be eligible for a permit. For most people, such policies amount to a ban on carrying a concealed weapon.
If California bans open carry, such severe restrictions on concealed carry will be in jeopardy. There have been two recent, post-Heller (and post-McDonald v. City of Chicago, which held the right applied equally to state and local governments) federal court decisions upholding California’s restrictive permitting for concealed carry. In both cases, the judges suggested that the policies were constitutional in part because gun owners can carry openly. (See here and here.) Even though California bans open carry of loaded guns, people can carry an unloaded firearm and, when trouble arose, quickly load the weapon. That argument won’t work if California’s open carry ban passes.
There are good reasons for people who don’t like guns to prefer laws allowing open carry, so long as concealed carry is difficult. Few gun owners want to carry their guns openly, which often leads to confrontations with law enforcement, scares people away, or causes businesses to refuse to serve them. Allowing only open carry therefore enables marketplace incentives to discourage guns in public, without any Second Amendment problems. Of course, there may be costs too, especially if more and more people carry openly and attempt to normalize such activity.
This is, in short, the open carry dilemma. Gun control supporters who favor the current barriers to concealed carry have to start figuring out how they should deal with it.