By Adam Winkler
February 23, 2014
What's the best way to minimize the number of guns on California's streets? That's the question confronting gun control supporters after this month's ruling by the U.S. 9th Circuit Court of Appeals striking down San Diego's restrictions on carrying handguns in public. That case was brought by gun owners who applied for but were denied permits to carry concealed weapons.
San Diego will undoubtedly appeal the decision in the hope of saving its restrictive policy for awarding concealed carry permits. Lawmakers who support gun control might want to consider another option: Rewrite state law to allow people to carry guns openly.
For many in the gun control community, that will seem like a crazy idea. State law bans ordinary civilians from carrying openly displayed firearms. And gun control advocates don't want to see more gun enthusiasts showing up at Starbucks or the local movie theater with guns hanging on their hips like Gary Cooper in "High Noon."
Yet if they don't want too many guns in public, open carry may be the answer.
To understand why, begin with the 2nd Amendment. In a landmark 2008 ruling, the U.S. Supreme Court held that it protects the right of individuals to have guns for personal protection. Yet the text of the amendment guarantees not only the right to "keep" a gun, as one might in the home, but also the right to "bear," or carry, arms.
The problem with San Diego's law, according to the appeals court ruling, was that it allowed almost no one to carry a gun in public. To obtain a concealed carry permit, you had to show that you had some special, personal need to have a gun on the streets. You could satisfy this requirement if you were being stalked. But just saying you wanted to protect yourself generally from criminals was not enough.
Coupled with the statewide prohibition on carrying guns openly, San Diego's law was in effect a ban on bearing arms for the overwhelming majority of people.
Like most gun owners who wish to carry guns, the San Diego plaintiffs who challenged the city's law want to carry concealed weapons. They don't object to obtaining a permit, but they believe California, like the majority of states, should award permits to any law-abiding, competent adult with the appropriate training.
If their victory stands, concealed carry permits in California will, by some projections, skyrocket from 56,000 today to more than 1 million. And in Los Angeles County, where only 341 people have permits, it is estimated that up to 300,000 people would obtain them. You may never go to a Starbucks, mall or movie theater again without someone there having a gun hidden under his coat or in her purse.
Hidden weapons is the key here. Very few gun owners want to carry openly displayed guns. The police hassle you, stores refuse to serve you and some people won't talk to you. Criminals might even target you, seeking to steal your expensive sidearm.
Under an open carry law, the state could still require a license, so long as it's generally available to law-abiding adults. Counties with large cities, like Los Angeles, Orange and San Diego, could keep their more restrictive licensing requirements for concealed carry.
But if the state allowed open carry, concealed carry could be banned entirely. In the 2008 case, the Supreme Court noted approvingly that courts have consistently upheld such bans, so long as people could carry openly.
One starting point for state lawmakers is to repeal a 2011 law that made it illegal to carry unloaded weapons openly. Before that law went into effect, Californians were prohibited from carrying a loaded gun openly, but unloaded open carry was allowed.
Although gun owners argue that an unloaded gun is no defense at all, lower courts have disagreed. They have held unloaded open carry to be a sufficient alternative because someone confronted with danger can quickly load a weapon in seconds for self-defense.
There are downsides, of course, to allowing any kind of open carry. It understandably scares many people. Gang members might use it as an excuse to brandish guns. It might further normalize the presence of guns in public.
These dangers shouldn't be minimized. But neither should they be exaggerated. Currently, 41 states allow open carry, and unloaded open carry was permitted in California until three years ago.
Open carry has an added benefit for people who don't like guns. If a guy at Starbucks has a gun on his hip, you can see it and leave the premises. Not so if the gun is concealed.
Besides, gun control advocates may not have much choice: 2nd Amendment experts predict the Supreme Court, like the federal appeals court this month, will eventually hold that people must be allowed to "bear" arms in some fashion. That means California will have to allow either concealed carry, which will be popular, or open carry, which won't be.
Letting people tote their guns around on their hips sounds dangerous. But for those who want fewer guns on the streets, there are a million reasons to prefer open carry.
Adam Winkler is a professor of law at UCLA School of Law and the author of "Gunfight: The Battle Over the Right to Bear Arms in America."
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