More From Eugene Volokh On Open Carry

BY Herschel Smith
3 years, 8 months ago

Recall that I had some questions for Eugene Volokh here?  Eugene responded thusly via email:

Eugene: To answer your questions, of course if a state decided to order police officers to carry concealed, police officers would have to carry concealed – just as it can tell them what kinds of guns to carry, what kinds of uniforms to wear (or not wear, if they’re undercover), or whatever else.  When the state hires someone to provide armed protection for the public, it can tell prescribe in great detail just how this duty is to be carried out (and how it is not to be carried out).

HPS: Thanks for the response, but I confess that I find it most unsatisfying because you have grounded your answer in contractual obligations rather than whether something rises to the level of being an infringement of basic rights.

Eugene: Well, you asked a question:  “Suppose rather than the rights of an ‘ordinary’ citizen being addressed here it was the rights of law enforcement officers who may need to defend their lives….  Would any court in the land have dared to force LEOs to carry concealed?”  The answers is every court in the land would uphold such a requirement.  (Indeed, I’m pretty sure that many nonuniformed police officers are expected to carry concealed, and are sometimes required to carry concealed.)  Now you say you’re unsatisfied because my answer is based on contractual obligations.  (To be precise, it’s based in the government’s power to fire employees, with or without a contract, who don’t follow its rules on such matters.)  But your own question was premised on “contractual” matters:  The only reason that law enforcement officers are law enforcement officers is that the government has hired them to do the job.  You can’t ask a question about what law enforcement officers – who are called that only because they are a particular kind of employee – can be forced to do (on pain of losing their jobs), and then sensibly object to the answer that law enforcement officers have to follow the rules set forth by their employers.

Perhaps because of an unintentional misdirect on my part, I think Eugene is missing the broader point I tried to make.  If it isn’t an infringement on rights to force individuals to carry concealed rather than openly, is he in fact not acknowledging the very real delay in presenting the weapon for use with an effective sight picture (carrying concealed means that the weapon can get hung on shirts, pants, and other clothing, and certainly means a delay in presenting the weapon due to the need to remove the offending clothing in order to get to the weapon).

And if this is all true, wouldn’t LEOs point it out if we required them to carry concealed?  And if this isn’t an infringement of rights, then at what point does it become so?  Can the law require us to have one hand tied behind our back?  If seems a silly question, and how about one to which the courts would no doubt be more amenable?  Would it infringe on our rights if the law required us to have our weapons unloaded, regardless of method of carry?  Or would it infringe on our rights if the law required us to have two or more garments covering a weapon in order to ensure that we had no inadvertent flashing of the weapon if we bend over or in a stiff wind?

Eugene has more on open carry.

… 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 …

Well, I think it would, and Eugene doesn’t account for the fact that some of us who open carry are not doing so in order to make a point (although I don’t disparage point-making as a legitimate end).  I consider concealed carry to be intrusive, uncomfortable and inefficient regarding “presentation” of the weapon.

What do readers think?


Comments

  1. On February 25, 2015 at 9:49 am, 2A Texas Cop said:

    Open carry ‘opens’ yourself to unwanted attention from the Forces of Fancy Dress and says to the civilian predators, ‘Shoot me first’- ditto for wearing a photographer’s vest or a fanny pack or a firearms-associated logo on your hat or t-shirt (I simply do not understand the average 2A-supporter’s fascination with wearing Bubba hats, camo and/or t-shirts in inappropriate environments). Sigh…

    If you’re openly carrying a rifle it is pretty obvious and little can be done to hide the fact that you are armed.

    Openly carrying a pistol on the other hand, is another Darwinian mechanism like going into dangerous places unnecessarily and associating with stupid people engaging in stupid behavior.

    But if you want to open carry, it is your Constitutional right, so go for it.

    But as for me and mine, we will go into the world appearing as harmless as the dove.

  2. On February 25, 2015 at 10:20 am, Herschel Smith said:

    You have absolutely no statistical evidence to back up your assertions.

  3. On February 25, 2015 at 12:11 pm, Barrett West said:

    Much prefer the open carry, though I do have a CHL in Oregon. Feel bad for folks who live in non-open-carry states. Most of the colder months, I compromise and wear a coat, then take off the coat when I get into a restaurant and sit down. Affords me the comfort of open carry without all of the attentions Texas Cop mentions. Also helps that I don’t look like a dirtbag and wear a proper holster – I suspect appearances matters much when it comes to open carry.

  4. On February 25, 2015 at 12:33 pm, Old 1811 said:

    If you live in an open-carry state and you want to do it, go right ahead. I think the potential for trouble makes it more trouble than it’s worth.

  5. On February 25, 2015 at 2:03 pm, Travis Roberts said:

    Meh. I’ve been OC’ing for over ten years without issue. I really don’t see why some people insist on making such an issue out of it. Well, then again, I suppose interracial couples used to cause quite the stir…

  6. On February 25, 2015 at 2:26 pm, Old 1811 said:

    Mr. Roberts, you’re exactly right. In urban areas, open carrying freaks people out. They’re not used to seeing non-police open carrying, even when it’s legal. And there are more of them who vote. I would suggest that if you do open carry, don’t dress like you just came in from changing your oil. Wear nice jeans or slacks and a collared shirt. Clothes really do make the man. Right or wrong, people judge you by your dress.
    The vast majority of people have no opinion on open carry one way or the other. They will base their opinions, and their votes, on the open carriers they see. If they see a bunch of slobs, it will scare them and they will oppose it, and if they see neat, well-dressed, polite open carriers, they will wonder what the big deal is.

  7. On March 2, 2015 at 6:15 am, Dana King said:

    Seems to me the 9A answers any question one might have as to any power not loaned to govt. The govt doesn’t get to define what the 1A, 2A, says/means or any of the Amendments in the BoR because the 9A covers ALL bases.

    The 9A asserts that ALL the powers in the universe belong to the people and the govt is only ALLOWED those powers specifically loaned to it. The difference is that our rights and liberty are unalienable, the powers of govt are NOT and can be revoked and are dependent solely on the consent of the governed.

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This article is filed under the category(s) Guns and was published February 25th, 2015 by Herschel Smith.

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