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Op-Ed

Gun control that won't

If California bans 'open carry,' it could lead to more permits to carry concealed weapons.

May 24, 2011|By Adam Winkler

What if we passed a gun control law but it led to more people carrying guns on our streets? That may be exactly what happens if a bill passed last week by the California Assembly becomes law.

AB 144 would prohibit the carrying of visible firearms in California cities. It was inspired by the spectacle of gun-rights advocates showing up last year at Starbucks shops with their handguns prominently displayed. That's legal, as long as those guns are unloaded.

If, however, California bans what is called "open carry," the state will probably have to loosen the standards for people to have permits to carry concealed weapons. In California, gun owners can only legally carry a concealed firearm, loaded or unloaded, if they have a permit. And in cities such as San Francisco and Los Angeles, "concealed carry" permits are very difficult to obtain — arguably too difficult, if AB 144 becomes law.

How, exactly, could banning open carry become a wedge that opens the door to more liberal concealed carry laws? It starts with a landmark Supreme Court decision two years ago, District of Columbia vs. Heller, in which the justices clearly held — for the first time in United States history — that individuals have a constitutional right to possess firearms.

Although the court's decision involved only guns kept in the home, most 2nd Amendment experts predict the court will eventually hold that the Constitution also guarantees the right to have a gun for self-defense in public. As the court explained, the 2nd Amendment recognizes not just a right "to keep" arms but also a right to "bear," or carry, arms.

The court decision, however, also suggested that the right to bear arms is not absolute. States may be able to ban people from carrying concealed weapons or prohibit them from carrying them openly, but probably not both. The court cited a number of lower court cases that upheld concealed carry bans on the ground that citizens still had the alternative of openly carrying their guns.

In two recent lower court lawsuits challenging California's concealed carry laws, the judges upheld the restrictive policies in part because the state allowed open carry. The judges explained that because the state allows people to openly carry unloaded firearms without a permit, any 2nd Amendment right to have a firearm in public was satisfied. If you find yourself in immediate danger, you can load your gun quickly and protect yourself. Absent an open carry policy, however, future courts could have a much harder time upholding concealed carry restrictions.

Truth is, only a handful of gun owners are willing to tote their guns around openly. Not only does it scare and alienate neighbors, it also often leads to confrontations with police because officers are allowed to inspect openly displayed guns to ensure they're not loaded. Gun owners would much prefer to conceal their firearms when out on the town, and although gun-rights groups are officially opposed to the AB 144 ban, some gun owners must be quietly hoping that the California Senate passes the open carry ban and Gov. Jerry Brown signs it into law.

Banning open carry might be a comfort to people who are terrified by the sight of guns. But what is worse: seeing a visible, unloaded gun once in a blue moon at a Starbucks — or being surrounded by people with hidden, possibly loaded guns every time you go out on the street?

Adam Winkler is professor of law at UCLA and the author of "Gunfight: The Battle Over the Right to Bear Arms in America."

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