Adding Open Carry to County Resolution

[SAK]

I think we should consider adding open carry to this resolution. I believe with the SCOTUS ruling, open carry would considerably strengthen the resolution. The state may be forced to allow open carry, which would mean we've got a pinky toe short of two feet in the door for concealed carry. Open carry is an excellent concealed carry alternative, and would be a wonderful incremental advancement before we get the full deal.

[MARKHOLSTRUM]

great idea SAK plus it will help stop ppl from freaking out the second they see a gun as well.

 

EDIT: The open carry should be without permit since that is the way its described in the SCOTUS ruling

[lockman]

I think we should consider adding open carry to this resolution. I believe with the SCOTUS ruling, open carry would considerably strengthen the resolution. The state may be forced to allow open carry, which would mean we've got a pinky toe short of two feet in the door for concealed carry. Open carry is an excellent concealed carry alternative, and would be a wonderful incremental advancement before we get the full deal.

 

A lot of states authorize the carry of a firearm but do not specify the method. Since a vast majority of the land in the state is "rural open carry" currently, I don't think that should be a problem.

[Slappy]

I've always been a fan of open carry and definitely think we should have it in IL...

 

but we also have to make sure that we don't overwhelm the board with changes and edits and demands... we need to clean up the first drafts of the resolution so the wording is proper and legal and actually get it passed...

 

then we can start the other issues, like OC...

 

IMHO that is...

[BobbyT]

Once again, while we have the chance to start from scratch why aren't we going for just "carry"? Or something more specific, like "the right to carry a weapon of one's choosing in a manner one sees fit shall not be infringed"?

 

If the standard is set at concealed, you can try for open carry as a follow-up but you'll still have two distinct concepts, and likely end up with separate rules and conditions for each, etc. So when you take a trip down to Home Depot with your Glock carried IWB but just under your yard-work t-shirt and an inch of the handle shows while you reach for something, you're in a position of improperly concealing...as opposed to just carrying as you see fit (which happens to be casually concealed but if it shows no biggie).

 

I really think this is an important issue, because if we end up with statutes allowing open carry outside of every town's limits, it's useless day to day if you just want to run an errand without layering up in clothes to bury your gun in. I don't see myself ever carrying OPEN-open (holstered outside my pants), but I also dress for comfort in the warm months since I spend a lot of time outside. It would be a serious and unnecessary hindrance if we end up having to completely conceal (or, even if we do get open carry everywhere, something absurd like having to have it completely in the open), rather than just casually carrying semi-concealed.

 

Am I alone in this view?

[junglebob]

Adding open carry to the resolution would make Winnebago County similar to the following states which surround us as Minnesota, Iowa, Missouri, Indiana, Kentucky, Tennessee, Ohio and Michigan, and even Wisconsin allow it. Missouri either doesn't have preemption or has significant restrictions. Some states like Indiana, Minnesota, Tennessee and Iowa require a license. This would be good even if one didn't want to open carry, since a jacket can get caught on something or the wind can catch it or a handgun can print. In some states like Wisconsin, it is rare, and you may get hasseled by police or arrested for disorderly conduct.

 

www.opencarry.org has a lot of information on open carry laws in the different states.

[burningspear]

Once again, while we have the chance to start from scratch why aren't we going for just "carry"? Or something more specific, like "the right to carry a weapon of one's choosing in a manner one sees fit shall not be infringed"?

 

If the standard is set at concealed, you can try for open carry as a follow-up but you'll still have two distinct concepts, and likely end up with separate rules and conditions for each, etc. So when you take a trip down to Home Depot with your Glock carried IWB but just under your yard-work t-shirt and an inch of the handle shows while you reach for something, you're in a position of improperly concealing...as opposed to just carrying as you see fit (which happens to be casually concealed but if it shows no biggie).

 

I really think this is an important issue, because if we end up with statutes allowing open carry outside of every town's limits, it's useless day to day if you just want to run an errand without layering up in clothes to bury your gun in. I don't see myself ever carrying OPEN-open (holstered outside my pants), but I also dress for comfort in the warm months since I spend a lot of time outside. It would be a serious and unnecessary hindrance if we end up having to completely conceal (or, even if we do get open carry everywhere, something absurd like having to have it completely in the open), rather than just casually carrying semi-concealed.

 

Am I alone in this view?

 

You are not alone. I agree.

 

As you infer, the definition of concealed must be given great thought. Its definition must be carefully crafted. Research of how other statutes in states with concealed/open carry laws is mandatory. Heck (I am polite), some of the statutes from these other states could be adopted word for word.

[tech141]

I would be more than happy to be able to carry my full-frame .45 in my drop-leg holster. It was VERY comfortable carry that way when I was in Afghanistan, and should still be so here.

 

COPS carry open, there shouldn't be a problem....

[SAK]

I'm working with the board now in this initiative. It will ultimately be up to them to decide how to do this. I'm mostly thinking from a legal point of view here, on what would make this resolution the strongest possible. It's GOING to wind up in court -- we all know it. So we need to have the best shot possible. Open carry will be a tough nut for the antis to crack in court.

 

I think the board has more recent versions of the resolution that have not necessarily been made public nor necessarily brought up in the meetings. It's still in "draft" mode however, and the board seems open to the idea of open carry. So with any luck we could get this thing to fly. I'll be doing some legal research with some other people and submitting our findings to the board for their review.

 

If this can be incorporated, it will undoubtedly increase our chance at a court victory. If the concealed carry portion is somehow shot down, the open carry will still have a very good chance at sticking. Then we can start open carrying here, and 100+ other counties will follow suite :Drunk emoticon: Anti-rights politicians will prefer concealed carry to open carry, because open carry represents a self-reliance ideal which is antithetical to their agenda of reliance upon government. These politicians will prefer (and it *MAY* require lots of people to actually exercise the right of open carry) to pass a concealed carry in order to get more of us to stop open carrying

 

 

This open carry initiative is one of the initiatives that the small group I've started will be working on. If anyone is interested in participating in it, please let me know. We're looking for leaders with initiative, self-motivation, and dedication. It's not going to be a carried-by-the-wind sort of deal. It will be an uphill, long, hard battle but with the right people we can do it.

[SAK]

I've forwarded some more information about open carry and the SCOTUS ruling, and have gone over some of it with members of the CC sub-committee. They are very interested in it. They are very determined to do this legally, and since open carry appears to be very strong from a legal standpoint, it might be used.

[richp]

Hi,

 

I was at the meeting last nite (thanks Chris for the ride) and was impressed with the apparent solidarity of the subcommittee.

 

I do have two comments that might put me at odds with lots of folks on this board, though.

 

First, the way Illinois society is imprinted these days, open carry will be so alarming to the average citizen as to be a very hard sell. Politicians will find it tough to stomach something that they instinctively know will be disruptive to the fabric of day-to-day life in the suburban and urban parts of the state. I think pushing for open carry would be over-reaching (and as I note below, not all that much of a practical gain). Let's be careful not to position ourselves in such a way as to couple our reasonable measures to others that might be harmful to our cause.

 

Second, I frankly don't want to advertise that I'm carrying anyway. The prime benefit is the fact the thugs don't know who is armed and who is not. Plus, if you're armed, my view always has been that (in the case of some thugs) showing you're armed is equivalent to inviting a quick shot to the head, to take your gun out of play before they rob you. Better they don't know who's armed and who's not.

 

Enough serious stuff. Half dozen of us were sharing an elevator coming from the meeting last night, and a woman got on halfway down. She asked us what we were there for, and someone said, "for the gun meeting." She said something about hoping none of us had a gun. The response to her was, "If we did, you'd be the safest person within blocks." That's the kind of thing we need to promote.

 

See you all Friday!!!

 

Rich Phillips

[wazzle]

Hi,

 

I was at the meeting last nite (thanks Chris for the ride) and was impressed with the apparent solidarity of the subcommittee.

 

I do have two comments that might put me at odds with lots of folks on this board, though.

 

First, the way Illinois society is imprinted these days, open carry will be so alarming to the average citizen as to be a very hard sell. Politicians will find it tough to stomach something that they instinctively know will be disruptive to the fabric of day-to-day life in the suburban and urban parts of the state. I think pushing for open carry would be over-reaching (and as I note below, not all that much of a practical gain). Let's be careful not to position ourselves in such a way as to couple our reasonable measures to others that might be harmful to our cause.

 

Second, I frankly don't want to advertise that I'm carrying anyway. The prime benefit is the fact the thugs don't know who is armed and who is not. Plus, if you're armed, my view always has been that (in the case of some thugs) showing you're armed is equivalent to inviting a quick shot to the head, to take your gun out of play before they rob you. Better they don't know who's armed and who's not.

 

Enough serious stuff. Half dozen of us were sharing an elevator coming from the meeting last night, and a woman got on halfway down. She asked us what we were there for, and someone said, "for the gun meeting." She said something about hoping none of us had a gun. The response to her was, "If we did, you'd be the safest person within blocks." That's the kind of thing we need to promote.

 

See you all Friday!!!

 

Rich Phillips

 

 

I am glad you said this Rich, I have been thinking the same thing but wondered to myself if there was something concerning open carry I was not aware of. The only time I would even consider open carry is if I am on my own property, and I can do that now.

[eric2281]

I agree with what you're saying. In regards to the lady from the elevator yesterday, that was priceless! It's funny because its true.

[SAK]

Thanks for the reply, Rich. And more importantly, thanks for showing up at the meeting! I'll see ya Friday as well.

 

It is a tough decision, no doubt about it, and it's one that will have to finally be made by the county board. The effort to promote open carry is an effort to give this county-based resolution and ordinance its best of gaining us some ground. The board members, particularly those on the sub-committee, will have to make the tough decisions at the end of the day.

 

From a legal standpoint, open carry is phenomenally stronger than concealed carry. To my great dismay, the SCOTUS ruling mentions numerous times that concealed carry can be regulated, or restricted. It even suggests it can be outright prohibited. In contrast, open carry is mentioned numerous times, and the decisions of state supreme courts and other cases are cited to show that open carry cannot be prohibited. There are also other helpful parts of the ruling. So ultimately, and the board will have to decide with legal advice, it's unsure how much we can push concealed carry -- how much states are restricted from prohibiting it (eg. can or can states not outright prohibit concealed carry), and further questions.

 

One thing is absolutely certain -- open carry is a constitutionally-protected pre-existing right that may NOT be restricted other than to prohibit felons, the mentally ill, and other very limited factors (this all according to SCOTUS).

 

As far as the negative reactions to open carry -- well we will deal with it. I would much rather fight such negative reactions with a public-education campaign than to be left with neither open nor concealed carry. Open carry can be put in whatever light you wish it. For one thing, all of the statistics and facts are on our side. So it's just a matter of marketing. Criminals, gangbangers, etc, will not be utilizing open carry. This we know. They don't utilize it in other states. They illegally carry weapons concealed.

 

Keep in mind that the biggest problem we face with the ignorant people is the problem of...ignorance. It's not a problem of stupidity, it's a problem of simply not knowing better. This problem is mostly caused by the LACK OF EXPOSURE TO GUNS. Secondly to ENTERTAINMENT in my opinion, and thirdly to BIASED, ANTI-RIGHTS AGENDA MEDIA.

 

For example. Bob and Lisa grow up in an urban environment. They have never been exposed to guns in real life other than seeing police carry them. They've never held a gun or shot a gun. They haven't done any independent research on the topic. Bob and Lisa watch TV, like most Americans. Also like most Americans, they watch movies. The movies and TV shows depict a common theme: bad guys using guns against regular people. 95% of the time only the bad guys and the good guys have guns. The other 5% of the time where a "regular" person gets ahold of a gun he/she is either 1) overtaken by the mystical magical evil powers of the gun and becomes a murderous psychopath 2) negligently fires the gun injuring self or another, or negligently leaves gun out for kids to be injured or 3) the gun -- shaking in his/her hand -- is calmly taken away from him/her and used against him/her and/or other people. The cops (the government) are always the good guys, so is the state's attorney (the government again). Regular citizens are all suspects and can't be trusted. It's in everyone's best interest not to have guns, etc.

 

Back that up with the repetitious news reports of "GUN violence" and "GUN murders" and "illegal GUNS" and so-forth, and you've got a whammy of a mind-job on these poor folks. The news reports subconsciously bring back the hours and hours and hours of graphic images, sounds, and emotions from the entertainment side. The TV "programming" is complete. Guns now have an overwhelmingly negative association with Bob and Lisa from urban Illinois.

 

 

2 Possible Solutions:

 

1) Talk to Bob and Lisa, or hope they see you or someone else in the movement on the news. Pray Bob and Lisa listen to reason, discard all of their anti-gun conditioning, and come over to your side...or at least not object to your right to keep and bear arms. Hope that by some luck Bob and Lisa might be around to see you or others at Lobby Day in Springfield or rallies in Chicago, or that their trusted news will fairly cover the event (if at all). Hope that over time, with Internet books and websites galor to spread the truth, Bob and Lisa will somehow discover it. Unfaced with this information, Bob and Lisa will never even have to consider for one moment that there may be another side to guns. Hope that lobbying your legislators and passing laws will bring to Bob and Lisa the truth one day. Hope that your activities such as rallies and lobbying get noticed and get the same attention that the activities of anti-rights people like snuffy and Jesse Jackoff.

 

2) Work within the law, including the courts, and with legislators to force a change based upon Constitutional law and protections. It won't be easy, but with more and more people exercising open carry responsibly (and not a single example of irresponsible open carry), you will start to replace those negative associations from multimedia with positive associations from actual reality. Reality is more powerful than fiction, after all. Bob and Lisa might even be YOUR neighbor. They may see YOU carrying while you're mowing your lawn, or while you're at the grocery store, while you're out with your kids, etc. They will begin to realize that it's not just bad guys who use guns, but good guys too. Then they'll realize that good guys having guns makes the good guys safer, and makes society safer. Your action is worth a billion words that you could post on the Internet, or write to the newspaper, or say on TV, or anything else.

 

 

The opposition we will face with option 2 is already known. Arrests and false charges for things like "disorderly conduct" or "disturbing the peace" and similar are likely to occur, most likely in the urban areas with strict gun control. However, a few thousand dollars raised by the community to pay for the defense against a small misdemeanor charge, a lawsuit, and victories in court will make short and easy work of this type of illegal harassment. Work on the legislature on the state or local level to CRIMINALIZE this type of illegal persecution, and it will be virtually extinct. Standing together and simply exercising your rights within the law is all it takes. It won't be too hard or take too long. It's the best way, and perhaps the only way to change the minds of Bob and Lisa.

[wazzle]

SAK said,

 

"One thing is absolutely certain -- open carry is a constitutionally-protected pre-existing right that may NOT be restricted other than to prohibit felons, the mentally ill, and other very limited factors (this all according to SCOTUS)."

 

Call me stupid, but you are saying currently we have the right to openly carry a loaded weapon as long as we are not a felon or mentally ill. Can you show me exactly where it says this and why aren't we all doing it right now???? I still agree with Rich's comments recently posted.

[richp]

Hi,

 

Thanks for the support. I know there are a lot of folks who want to explore every possible combination, in the fight to expand back to proper gun ownership and use. In a perfect world, we could get everything we want simply from Heller. But I don't think that's possible as a practical matter, or even advisable in the short- and intermediate-term.

 

The last thing we want to do is to allow ourselves to be painted as wild-eyed extremists who want to walk through downtown Chicago, Aurora, or Champaign strapped on, locked and loaded. That would be playing right into the hands of the opposition.

 

I think there's another thing that pushing for open carry does, and that is damages one of our more powerful arguments for concealed carry. That would be the logic that if a certain percentage of citizens are armed, and the thugs don't know who may or may not be carrying, attacks against all persons are likely to be reduced. If you go down the open carry road, you lose that rationale, at least in part.

 

I absolutely concede that open carry is more convenient in some locales. I open carried when I lived in Pennsylvania years ago, and wanted to hike or camp, and have snake loads handy. I open carried in Alaska, when camping and hiking up there on various trips. A farmer or other person with rural property in Illinois already can open carry for mostly those same reasons.

 

But what do we gain by open carry in the more urbanized areas except making some kind of political or social statement? I see no globally persuasive self-defense argument for open carry. To be sure, there is an potential deterrent for some criminals in seeing a gun in the open. But as I said earlier, it's also possible that someone bent on attacking, will just bushwhack you when they see your gun. And the PR downside in our highly urbanized state is not to be ignored. There's a tremendous amount of public education to be done before we can expect open carry to be accepted and to be politically viable.

 

Having said that, there are active open carry movements in some locations. Virginia comes to mind, where it has not caused tremendous problems, despite the fact the state has some urbanized areas. But Virginia has a long tradition of being weapons-friendly. And outside of the Arlington-Richmond corridor, its citizenry is attuned to and comfortable with guns. That's largely not the case north of 80, where the political and social center of gravity lie in Illinois.

 

I say all that to say that I think we should be careful about how we proceed in the post-Heller era -- picking our battles to get important gains without engaging in distracting or destructive side skirmishes.

 

FWIW.

 

Rich Phillips

[SAK]

From another legal standpoint, most states have had open carry forever, and open carry has been a huge precursor to concealed carry. Most of the CCW states started out as open carry states, even though people doing so sometimes faced oppression.

 

The argument will be that only law-abiding people with valid FOID cards can open carry, and only those will do so because it is a serious crime -- likely even a felony -- to do so UNLESS you are a law-abiding citizen. Criminals will not risk the felony by open carrying -- they'll just illegally conceal carry anyways (surprise! they already do!).

 

Open carry also gives everyone -- police, citizens, everyone, the ability to see who is carrying. There aren't any surprises or secrets. It's something we're "open" about.

 

 

States like Ohio and I'm sure a number of others used open carry to force their legislators to pass concealed carry. Legislators would much rather have us conceal carry. But why bother passing that and giving us more when we won't even use what we've got right now? I believe this has been a key issue for Wisconsin and Illinois. Wisconsin should start a huge open carry movement on the coattails of this SCOTUS ruling. They'll have concealed carry in no time. Or at the very least people can open carry to protect themselves.

 

There is certainly something to be said of a tactical advantage for law-abiding folks to be able to conceal carry. The criminals won't know who is and who isn't. This is the most important reason we need concealed carry. However, open carry is better than nothing.

 

Furthermore, firearm owners should not be embarassed, ashamed or otherwise afraid to open carry. "Concealed carry is better" is not an excused not to utilized open carry (this particular goes for WI citizens). Nor is "well, people might be afraid or I might get bad looks" not an excuse. It may be awkward for a short time, but eventually society will get used to it and open carry will actually be respected and admired. Like the story above -- you're not going to get Bob and Lisa to change their minds about guns when you hide yours from them all the time.

 

Working with the tools we have (the latest addition and most powerful is the SCOTUS ruling acknowledging that right to open carry) we can get concealed carry. Everyone should have the choice whether to open or conceal when they carry. But it will be far, far, far easier to get open carry recognized by law than it will concealed carry. Open carry will be a huge step in the right direction, and will ultimately get us concealed carry.

[Chris]

SAK said,

 

"One thing is absolutely certain -- open carry is a constitutionally-protected pre-existing right that may NOT be restricted other than to prohibit felons, the mentally ill, and other very limited factors (this all according to SCOTUS)."

 

Call me stupid, but you are saying currently we have the right to openly carry a loaded weapon as long as we are not a felon or mentally ill. Can you show me exactly where it says this and why aren't we all doing it right now???? I still agree with Rich's comments recently posted.

 

There are many ways you could read Heller, one of the ways I do read it, it seems to say because of the use of bear and that they define it could mean that we already have that legal right.

 

I can tell you I'll sure as heck not be the first to try it because of that.

[wazzle]

You didn't answer my question. Open carry in Illinois is in unincorporated areas or on your own property. That doesn't mean you open carry in the downtown streets of your town. Where are you getting your information that says we have the constitutional right to open carry.

[SAK]

I won't be the first to try it either. I'm already winning one case...I'll at least wait until that one's done. It would be far better to have the protection of the county if this thing goes, better yet the protection of the sheriff. Eg. any city/state thugs arrest one of us for lawfully open carrying and they could be subject to arrest and prosecution themselves!

 

Here's a few parts of the ruling:

 

2. Like most rights, the Second Amendment right is not unlimited.

It is not a right to keep and carry any weapon whatsoever in any

manner whatsoever and for whatever purpose: For example, concealed

weapons prohibitions have been upheld under the Amendment

or state analogues. The Court’s opinion should not be taken to cast

doubt on longstanding prohibitions on the possession of firearms by

felons and the mentally ill, or laws forbidding the carrying of firearms

in sensitive places such as schools and government buildings, or

laws imposing conditions and qualifications on the commercial sale of

arms. Miller’s holding that the sorts of weapons protected are those

“in common use at the time” finds support in the historical tradition

of prohibiting the carrying of dangerous and unusual weapons.

Pp. 54–56.

 

[PAGE 2 NEAR BOTTOM]

 

 

10 DISTRICT OF COLUMBIA v. HELLER

Opinion of the Court

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 “urely a most familiar meaning is,

as the Constitution’s Second Amendment . . . indicate:

‘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)

 

…skip footnotes

 

(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.

 

[PAGE 13 + 14]

 

 

c. Meaning of the Operative Clause. 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

. . . .”16

 

[PAGE 22]

 

 

They understood

the right to enable individuals to defend themselves.

As the most important early American edition of Blackstone’s

Commentaries (by the law professor and former

Antifederalist St. George Tucker) made clear in the notes

to the description of the arms right, Americans understood

the “right of self-preservation” as permitting a citizen to

“repe[l] force by force” when “the intervention of society in

his behalf, may be too late to prevent an injury.” 1 Blackstone’s

Commentaries 145–146, n. 42 (1803) (hereinafter

Tucker’s Blackstone). See also W. Duer, Outlines of the

Constitutional Jurisprudence of the United States 31–32

(1833).

 

[PAGE 24]

 

 

Writing for

the court in an 1825 libel case, Chief Justice Parker wrote:

Cite as: 554 U. S. ____ (2008) 29

Opinion of the Court

“The liberty of the press was to be unrestrained, but he

who used it was to be responsible in cases of its abuse; like

the right to keep fire arms, which does not protect him

who uses them for annoyance or destruction.” Commonwealth

v. Blanding, 20 Mass. 304, 313–314.

 

[PAGE 30-31]

 

 

St. George Tucker’s version of Blackstone’s Commentaries,

as we explained above, conceived of the Blackstonian

arms right as necessary for self-defense. He equated that

right, absent the religious and class-based restrictions,

with the Second Amendment. See 2 Tucker’s Blackstone

143. In Note D, entitled, “View of the Constitution of the

United States,” Tucker elaborated on the Second Amendment:

“This may be considered as the true palladium of

liberty . . . . The right to self-defence is the first law of

nature: in most governments it has been the study of

rulers to confine the right within the narrowest limits

possible. Wherever standing armies are kept up, and the

right of the people to keep and bear arms is, under any

colour or pretext whatsoever, prohibited, liberty, if not

already annihilated, is on the brink of destruction.” 1 id.,

at App. 300 (ellipsis in original). He believed that the

English game laws had abridged the right by prohibiting

“keeping a gun or other engine for the destruction of

game.” Ibid; see also 2 id., at 143, and nn. 40 and 41. He

later grouped the right with some of the individual rights

included in the First Amendment and said that if “a law

be passed by congress, prohibiting” any of those rights, it

would “be the province of the judiciary to pronounce

whether any such act were constitutional, or not; and if

not, to acquit the accused . . . .” 1 id., at App. 357.

 

[PAGE 35-36]

 

 

In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia

Supreme Court construed the Second Amendment as

protecting the “natural right of self-defence” and therefore

struck down a ban on carrying pistols openly. Its opinion

perfectly captured the way in which the operative clause of

the Second Amendment furthers the purpose announced

in the prefatory clause, in continuity with the English

right:

“The right of the whole people, old and young, men,

women and boys, and not militia only, to keep and

bear arms of every description, and not such merely as

are used by the militia, shall not be infringed, curtailed,

or broken in upon, in the smallest degree; and

all this for the important end to be attained: the rearing

up and qualifying a well-regulated militia, so vitally

necessary to the security of a free State. Our

opinion is, that any law, State or Federal, is repugnant

to the Constitution, and void, which contravenes

this right, originally belonging to our forefathers,

trampled under foot by Charles I. and his two wicked

sons and successors, re-established by the revolution

of 1688, conveyed to this land of liberty by the colonists,

and finally incorporated conspicuously in our

own Magna Charta!”

Likewise, in State v. Chandler, 5 La. Ann. 489, 490

(1850), the Louisiana Supreme Court held that citizens

had a right to carry arms openly: “This is the right guaranteed

by the Constitution of the United States, and

which is calculated to incite men to a manly and noble

defence of themselves, if necessary, and of their country,

without any tendency to secret advantages and unmanly

assassinations.”

Those who believe that the Second Amendment preserves

only a militia-centered right place great reliance on

the Tennessee Supreme Court’s 1840 decision in Aymette

v. State, 21 Tenn. 154. The case does not stand for that

broad proposition; in fact, the case does not mention the

word “militia” at all, except in its quoting of the Second

Amendment. Aymette held that the state constitutional

guarantee of the right to “bear” arms did not prohibit the

banning of concealed weapons. The opinion first recogCite

as: 554 U. S. ____ (2008) 41

Opinion of the Court

nized that both the state right and the federal right were

descendents of the 1689 English right, but (erroneously,

and contrary to virtually all other authorities) read that

right to refer only to “protect[ion of] the public liberty” and

“keep[ing] in awe those in power,” id., at 158. The court

then adopted a sort of middle position, whereby citizens

were permitted to carry arms openly, unconnected with

any service in a formal militia, but were given the right to

use them only for the military purpose of banding together

to oppose tyranny. This odd reading of the right is, to be

sure, not the one we adopt—but it is not petitioners’ reading

either. More importantly, seven years earlier the

Tennessee Supreme Court had treated the state constitutional

provision as conferring a right “of all the free citizens

of the State to keep and bear arms for their defence,”

Simpson, 5 Yer., at 360; and 21 years later the court held

that the “keep” portion of the state constitutional right

included the right to personal self-defense: “[T]he right to

keep arms involves, necessarily, the right to use such

arms for all the ordinary purposes, and in all the ordinary

modes usual in the country, and to which arms are

adapted, limited by the duties of a good citizen in times of

peace.” Andrews, 50 Tenn., at 178; see also ibid. (equating

state provision with Second Amendment).

 

[PAGE 42-44]

 

 

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; Abbott 333. For example,

the majority of the 19th-century courts to consider the

question held that prohibitions on carrying concealed

weapons were lawful under the Second Amendment or

state analogues. See, e.g., State v. Chandler, 5 La. Ann.,

at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2

Kent *340, n. 2; The American Students’ Blackstone 84, n.

11 (G. Chase ed. 1884).

 

[PAGE 57]

 

 

In Nunn v.

State, the Georgia Supreme Court struck down a prohibition

on carrying pistols openly (even though it upheld a

prohibition on carrying concealed weapons). See 1 Ga., at

251. In Andrews v. State, the Tennessee Supreme Court

likewise held that a statute that forbade openly carrying a

pistol “publicly or privately, without regard to time or

place, or circumstances,” 50 Tenn., at 187, violated the

state constitutional provision (which the court equated

with the Second Amendment). That was so even though

the statute did not restrict the carrying of long guns. Ibid.

See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A

statute which, under the pretence of regulating, amounts

to a destruction of the right, or which requires arms to be

so borne as to render them wholly useless for the purpose

of defence, would be clearly unconstitutional”).

 

[PAGE 60]

 

 

The nonexistence

of a self-defense exception is also suggested by

the D. C. Court of Appeals’ statement that the statute

forbids residents to use firearms to stop intruders, see

McIntosh v. Washington, 395 A. 2d 744, 755–756 (1978).28

 

[PAGE 61]

 

 

Finally, JUSTICE BREYER points to a Massachusetts

law similar to the Pennsylvania law, prohibiting

“discharg[ing] any Gun or Pistol charged with Shot or

Ball in the Town of Boston.” Act of May 28, 1746, ch. X,

Acts and Laws of Mass. Bay 208. It is again implausible

that this would have been enforced against a citizen acting

in self-defense, particularly given its preambulatory reference

to “the indiscreet firing of Guns.” Ibid. (preamble)

(emphasis added).

A broader point about the laws that JUSTICE BREYER

cites: All of them punished the discharge (or loading) of

guns with a small fine and forfeiture of the weapon (or in a

few cases a very brief stay in the local jail), not with significant

criminal penalties.29 They are akin to modern

penalties for minor public-safety infractions like speeding

or jaywalking. And although such public-safety laws may

not contain exceptions for self-defense, it is inconceivable

that the threat of a jaywalking ticket would deter someone

from disregarding a “Do Not Walk” sign in order to flee an

attacker, or that the Government would enforce those laws

under such circumstances. Likewise, we do not think that

a law imposing a 5-shilling fine and forfeiture of the gun

would have prevented a person in the founding era from

using a gun to protect himself or his family from violence,

or that if he did so the law would be enforced against him.

The District law, by contrast, far from imposing a minor

fine, threatens citizens with a year in prison (five years for

a second violation) for even obtaining a gun in the first

place. See D. C. Code §7–2507.06.

 

[PAGE 64-65]

 

 

In sum, we hold that the District’s ban on handgun

possession in the home violates the Second Amendment,

as does its prohibition against rendering any lawful firearm

in the home

 

[PAGE 67]

[wazzle]

Thanks for the reply, but don't see it written anywhere but in very very vague terms. I still agree with Rich that using open carry to "force" them into a conceal carry is not the way to go. That is my last comment on this matter. Does anyone here agree with SAK on this open carry change?

[Chris]

Thanks for the reply, but don't see it written anywhere but in very very vague terms. I still agree with Rich that using open carry to "force" them into a conceal carry is not the way to go. That is my last comment on this matter. Does anyone here agree with SAK on this open carry change?

 

 

I think it should be one step at a time and maybe a later resolution can cover Open Carry.

[SAK]

"open" or "openly" in reference to the manner of carrying guns is mentioned not once, not twice, not three times, not four, but FIVE times by SCOTUS.

 

When SCOTUS speaks, we should listen

 

 

To be sure, I don't think we should CHANGE the resolution over to open instead of concealed. I think open should be added in there, in order to put our county in accordance with SCOTUS. Ultimately the board will decide.

[richp]

Hi,

 

Not wanting to beat a horse to death or monopolize the thread, I'll let this be my last word on this topic.

 

For me it's not so much what we might see as possible to justify in the law -- or even how the issue evolved in other states. Its a tactical decision that takes into account our very particular set of circumstances here in IL.

 

In Illinois today, we have a political and social environment that almost assures that most citizens will recoil from the idea of people carrying openly. Soccer moms, fully urbanized men, and almost every other demographic you name will be appalled with the thought that they and (heaven forbid!) their children might see armed citizens walking around the mall or sitting next to them at Starbucks. They and the politicians who listen to them (and who also may carry those same feelings) will recoil from open carry in ways we don't want.

 

Push open carry, and you seriously risk alienating the vast majority of people -- while gaining essentially nothing in the realm of personal self-defense in public. Which is what we're really all about, isn't it?

 

FWIW.

 

Rich Phillips

[lockman]

Hi,

 

I do have two comments that might put me at odds with lots of folks on this board, though.

 

First, the way Illinois society is imprinted these days, open carry will be so alarming to the average citizen as to be a very hard sell. Politicians will find it tough to stomach something that they instinctively know will be disruptive to the fabric of day-to-day life in the suburban and urban parts of the state. I think pushing for open carry would be over-reaching (and as I note below, not all that much of a practical gain). Let's be careful not to position ourselves in such a way as to couple our reasonable measures to others that might be harmful to our cause.

 

Rich Phillips

 

Regardless of your position on which method is best; the fact remains: Open carry is a right, concealed carry is a privilege.

 

We should not give up the fight to restore our rights for a substitution of privilege. Privileges come and go at the whim of government.

[richp]

Inadvertent Duplicate Post Deleted - RP

[MARKHOLSTRUM]

Open or concealed is still better than nothing......I would prefer the option for both BUT changing this particular effort in Winn cty may not be the time.

 

However I think it may be an easier sell at the state level when we get close to breaking the dam there......all that we would need is removal of the "incorporated city limits" bit....then preimption would be the issue.

[SAK]

lockman is right, at least according to the supreme court. Since I'm not going to argue with the supreme court at this time (like the antis are busy doing), perhaps we should run with it. Don't worry about monopolozing the thread or anything, I think it's very important we discuss these things.

 

There is no doubt that we will be met with resistance to open carry, just as we have met with concealed. No matter what, when we're talking about legally carrying loaded guns, we'll meet resistance. They met resistance everywhere. It's all about how we spin it, though. I think open carry CAN be put into a very positive light with some very good arguments. I'm more acquainted with concealed carry myself, but I'm learning more and more about open carry. So hopefully I can learn the arguments that are particularly suited to open carry.

 

One more thing to consider -- how long have we fought for concealed carry in Illinois? And where have we gotten. I think we're very far from it, and I hate to say that this supreme court ruling didn't help us much. It helped with the banning of handguns, and it helps with CARRY in general, but I don't think concealed carry is helped much by it. I think open is helped a lot more. Why not give it a try going for open carry -- something we've never done before? The merits of open are just as good as concealed, and all the states with open carry haven't had problems with it either. So what have we got to lose? In my mind the only thing we have to lose is more time, perhaps another decade, fighting for concealed carry that the state will fight tooth and nail and even use the SCOTUS ruling against us.

 

Why not go in with "our guns loaded" so to speak with the SCOTUS ruling and its support of open carry, and get it done? Open carry has been the forerunner to concealed in most states -- it could work here too

[richp]

Hi Lockman,

 

Thought I was done, but you've got my brain cells in a twitter.....

 

While I'm not an attorney, I don't see a distinction between open and concealed carry, as far as it being a Constitutional right. I believe they are equally and importantly asserted as falling under the Second Amendment.

 

True, Scalia mentions occasions where concealed carry laws were held lawful. But that is not the main thrust of his argument in those segments of the decision. I don't think he goes so far as to say that the two categories must be treated differently for the purposes Heller addresses.

 

The reason I think this is important is that it's entirely possible we could paint ourselves into a corner -- getting open carry (but not concealed) as lawful, but then being trapped in a society where it's so unusual that a disturbing the peace arrest could still stick.

 

FWIW.

 

Rich Phillips

[wazzle]

I thought I was done too, but, 48 states have conceal carry, I don't understand the reason for even wanting open carry. I sure never plan on walking around with a gun on my belt if I can walk around with it concealed. I just believe asking for open carry will hinder, not help the cause. We stand a better chance at matching conceal carry laws like states around us have, not going for something different. Rant off