The First Amendment As Protection For Open Carry
BY Herschel Smith6 years, 7 months ago
The United States is a nation built upon individual rights and freedoms.
One in particular that is often fought over is the “right of the people to keep and bear arms,” or more simply put, the right to carry a firearm.
Open carry is the act of publicly carrying a firearm on one’s person in plain sight. The majority of states allow citizens to open carry a firearm without a permit.
Surprisingly, Texas is not one of those states.
Now while this may seem shocking at first, most of these open carry states place burdensome restrictions on the act. These include location restrictions such as high schools and certain cities, state buildings, police stations, and shopping malls. With all these restrictions, open carry isn’t as permissible as it sounds.
The First Amendment has historically been much more difficult to limit than the Second, so extending Freedom of Speech to encompass the open display of firearms needs to be addressed. The case for open carrying being protected under the First Amendment can be made through symbolic speech.
The United States Supreme Court has answered the issue of firearms being protected by the Second Amendment through DC v. Heller (2008) and McDonald v. Chicago (2010). In regards to open carry from a legal perspective, we must look to the state laws rather than the Constitution.
However, there has been no Supreme Court case deciding whether or not the act of open carrying is protected by the First Amendment.
Open carrying a firearm is an action; it is symbolic speech because it is a public statement. As history has shown us, actions and public statements, are protected by the First Amendment under symbolic speech. Examples of this include students in Des Moines wearing armbands to protest the Vietnam War, waving flags that may be seen as offensive and even flag burning.
Symbolic speech relies heavily on the context within which it occurs.
According to Delaware’s leading Open Carry organization, “self-defense is the foremost reason for open carry.”Another leading reason as to why law abiding citizens open carry firearms is for educational purposes.
People want to bring attention to the fact that they have the right to bear arms and that they can legally and safely exercise that right.
Well, this is an interesting perspective indeed. Since I open carry from time to time and have strongly advocated open carry legislation in my neighboring state of South Carolina, I have addressed the issue of open carry with my readers.
I have said in no uncertain terms that I do not open carry to “make a point.” I open carry because I hate concealed carry. It’s uncomfortable and tactically inferior to open carry, and in the summer if I conceal I sweat my weapon, which not only causes rust and corrosion, but makes it a lint-magnet as well. I have very practical reasons for open carry.
But I have also made it clear that any calls to LEOs because someone openly carries would be a good opportunity for 911 operators to educate the public: “What do you mean he was carrying a gun, ma’am? Was he brandishing it, holding it, waving it around or threatening someone with it?” “No? Okay then, he isn’t violating any law in North Carolina by simply carrying a holstered firearm.”
There is no prima facie reason that open carry cannot be legitimately for the reason of making a statement or for education purposes. I’ve just never personally taken that stance for myself. But the author makes a good case for such behavior being protected by the constitution, and I see this as ripe for litigation.
On August 8, 2017 at 10:27 pm, Allen said:
I don’t want to make a point either. But, I like to be comfortable. I carry outside the waistband but wear a jacket.
On August 9, 2017 at 8:50 am, Oscar L James said:
Agreed. I carry openly because my risk analysis convinced me that carrying openly is the best way for me to protect myself and mine.
As with most things in life, it comes down to which risks we are willing to manage and which benefits matter most to us.
Y’all carry however you want to, legally.
Brandishing, in the several dictionaries I consulted, means to wave a weapon in a threatening manner. Simply carrying a handgun in one’s hand or pointing a handgun is not brandishing by definition. However, your state law may consider carrying a handgun in your hand, or pointing one, to be brandishing or disorderly conduct. Do your own research.
Texas law does not define brandishing. Rather, Texas Penal Code Title 10 Offenses Against Public Health, Safety, and Morals, Chapter 46 Weapons, Section 46.02 Unlawful Carrying of Weapons, states that
“.. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
(1) on the person’s own premises or premises under the person’s control; or
(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.”
Section 46.15(b) Nonapplicability states that 46.02 does not apply to a person who:
“(6) is carrying:
(A) a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and
(B) a handgun:
(i) in a concealed manner; or
(ii) in a shoulder or belt holster;”
Carefully study your state’s laws. Texas laws are confusing, having sections that modify other sections. Your state law are probably no less confusing.