Unloaded Open Carry in California - Activism or Asinine?

In San Jose this week, a man, Sherman Fontano, was arrested while carrying an unloaded .357 Magnum revolver on school grounds. When questioned, he said that he believed that he was not breaking any laws based on what he had heard from others:

After his brothers watched a newscast about the national movement to carry guns in public, they told Sherman "Tony" Fontano he could do that himself. Two San Jose police officers also said it would be OK.

The "national movement" mentioned above refers to the practice of individuals carrying their firearms in a holster unconcealed while they go about their daily business. OpenCarry.org is a web site that explains what this movement is attempting to accomplish, and how people can participate in open carry events.

The intended purpose of the open carry movement is to

"naturalize the presence of guns, which means that guns become ordinary, omnipresent, and expected. Over time, the gun becomes a symbol of ordinary personhood."

This intention flies in the face of more conventional views in California, where gun owners are a minority, making up only 21% of the population. In San Jose, one of the more anti-gun areas in the state, most people feel that guns are the cause of violence, and anyone carrying a gun in public is probably a criminal, resulting in the quick report of Mr. Fontano carrying a gun on school grounds.

Many non-gun owners would be surprised to learn that it is in fact legal to carry an unloaded, unconcealed firearm in many parts of the state. It is illegal to carry a loaded firearm in most places, unless one has a CCW (Carry Concealed Weapon) permit. These permits are almost impossible to obtain in Santa Clara county. In 2007 only 170 permits were in effect in the county, which has a population of 1.7 million, an issue rate of 0.01%.

In other states open carry of loaded firearms is legal without a permit, and concealed weapons permits are issued freely to any citizen that passes a background check and meets other objective criteria, such as firearms training and shooting range qualification with the firearm. Open carry advocates in those states carry openly on a daily basis to further the educational goal of OpenCarry.org, and for self protection.

Gun rights activists would like to liberalize California gun laws in a similar fashion, and some of these people think that open carry is an effective means to educate the public that they need not fear armed law abiding citizens. But is open carry really the best way to educate and persuade the public to change the gun laws, or is it a short sighted, ineffective tactic of gun activists that will ultimately prove to be counter-productive? Before attempting to give my answer to that question, let's review the law.

Standard disclaimer: I am not a lawyer, and everything that follows in not to be construed as legal advice. If you want to participate in unloaded open carry (UOC) events in California, you would be wise to consult an attorney for guidance and advice.

Everything that I am going to mention about California gun law is based on the excellent book by John Machtinger, "How to Own a Gun & Stay Out of Jail - California Edition". In my opinion every California gun owner should read and understand everything in this book. The definitive pace to find out about California gun laws is the actual Penal Code. Don't take my word for anything, read it for yourself!

Loaded guns are covered by PC 12031. Loaded firearms are prohibited in most public places:

12031.  (a) (1) A person is guilty of carrying a loaded
firearm when he or she carries a loaded firearm on his 
or her person or in a vehicle while in any public place 
or on any public street in an incorporated city or 
in any public place or on any public street in a 
prohibited area of unincorporated territory.

The sharp reader, however, will have noted that carrying a loaded firearm is permitted in unincorporated territory that is not a prohibited area. Prohibited areas are defined by individual counties, and citizens must check to ensure that they are in the proper areas to carry a loaded weapon. These are almost always rural areas where hunting, fishing, and target shooting is allowed.

Concealed weapons are covered under PC 12025. Concealed firearms are prohibited in most circumstances:

12025.  (a) A person is guilty of carrying a concealed firearm when
he or she does any of the following:
(1) Carries concealed within any vehicle which is under his or her
control or direction any pistol, revolver, or other firearm capable
of being concealed upon the person.
(2) Carries concealed upon his or her person any pistol, revolver,
or other firearm capable of being concealed upon the person.
(3) Causes to be carried concealed within any vehicle in which he
or she is an occupant any pistol, revolver, or other firearm capable
of being concealed upon the person.

But there is a very important exception to the above provision:

(f) Firearms carried openly in belt holsters are not concealed
within the meaning of this section.

Hence we get to the full legal reasoning for UOC in the state of California: loaded and concealed weapons are illegal where most people live, while unloaded and unconcealed weapons in a belt holster are not. Police have the right to stop an openly carrying person to verify that the weapon being carried is indeed unloaded. Further case law has established that it is legal to carry loaded magazines or ammunition as long as it is not attached to the gun in any manner. Most UOC advocates carry loaded magazines in case they need to protect themselves. But having to load a weapon first greatly degrades the self defense utility of a firearm.

Given that UOC is legal, is it a good idea? As Mr. Fontano learned, carrying a handgun around San Jose will get you a lot of unwanted attention from the police, and the usefulness of an unloaded gun for self defense is limited, so why would anyone want to do it? Self proclaimed members of the open carry movement in California do it because they believe that "A Right Unexercised is a Right Lost", because they want to educate the public about law abiding citizens carrying firearms, and ultimately liberalize the gun laws of California.

But is UOC effective activism? Examining the California forum on OpenCarry.org one finds many stories of individual experiences and open carry events. But many postings involve the how to conduct oneself during the inevitable stop by police, or ensuring that the open carrier does not enter a school zone. One thread in which an open carry event is being planned, Santana Row in San Jose is suggested:

If you want to go for a large public place (which gives us the chance to educate) then how about some place inside Santana Row? I believe (Please check for yourself) that it is outside any GFSZ.

Walking up and down the sidewalks would get a lot of attention.

GFSZ stands for Gun Free School Zone in this message.

Santana Row met with some approval, as illustrated in this message:

Great idea. This location should be OUR next meet. I will google map the location and see if I can find any restricted areas. If we're clear of GFSZ, but is alittle out of the 1,000 ft mark, I'll print out directions from our location to the school to show LEO we're in the clear. This weekend should be the meet since it's getting cooler by the day.

we're open for suggestions.

But UOC is a legal minefield in California, as the nest post shows:

I would recommend/strongly urge you not to bring a map of the school zones. The burden of proof that you are in violation of 626.9 is on the courts, bringing a map does the work for them, plus if you were to accidentally violate the GFSZ act, you would have zero defense if the map was found. No good can come from bringing a map with you, just know your routes before you leave.

Santana row is a great idea, 626.9 permitting.

PC 626.9 is the section of the California Penal Code prohibiting guns (loaded or not) within 1000 feet of a school. Mr. Fortano probably wishes he had head of this before open carrying himself. This post describes other tactics to use when open carrying to avoid legal repercussions:

For the benefit of all the new people attending, please sterile-carry.

sterile-carry: The act of having no identifying material on your person. No drivers license, state ID, bank card (carry cash), library card, etc.

Keep it in the glove box.

What was the effect of this open carry meet? Later postings give an indication:

Just got back, we had one carrier and about six non-carriers. I handed out a flyer to a lady who stopped by our group and asked for money for some group. It wasn't as crowded as I thought it would be, parking was pretty easy to find. Still, lots of people but I didn't hear or see anybody react. Two new members showed up. It was a nice day, although everywhere we went there were people singing, making it somewhat hard to chat. I guess worse things could happen.

This event happened on November 28th, 2009, and Santana Row in San Jose, one of the most popular shopping malls in Santa Clara county. There was not one mention of it in the San Jose Mercury News, on local television stations, or on local radio stations.

Great activism, huh? But the proof that these people are dilettantes is provided by the following post:

If we're going to have a meet, we shouldn't tell everyone on open forum when and where until after it happens. Wouldn't want any suprise guests or government funded party crashers showing up.

Real activists would publicize their events to ensure that OC'ers, the press, and the police are all there in as large a number as possible. OpenCarry.org has numerous postings on open carry events held in other states that had many attendees, carriers and non-carriers alike, with press coverage. Real activists want to confront the police, possibly be arrested, and have the arrest shown on the evening news, along with a sound bite from a press release or from a member.

In my opinion UOC in the context of California gun laws, and the political climate, is stupid. And the way the open carry people on OpenCarry.org conduct themselves shows that they are not serious about real activism. Frustrated by the "may issue" CCW laws in California and the restrictive issue policies of local sheriffs departments, they are grasping at straws to have a shadow of the same privileges afforded to citizens of other states. UOC is neither an effective form of carry for self defense, nor is it easily taken seriously as civil rights activism.

I think that is is telling that the only mention of the open carry "movement" in the local press was the arrest of Mr. Fortano, whose arrest on school property is NOT going to win any friends for concealed carry law reform (very much needed in California), open carry, or gun rights in general.

California is at a very critical juncture. Incorporation of the 2nd Amendment against the states may happen next year, at which time many California laws will be challenged in the courts. Minorities usually do not fare well at the ballot box, and 2009 shows this to be true with the passage of ever more restrictive guns laws, like AB 962. Open carry advocates should tone it down, and wait for the possibility of real results in courts in 2011 and beyond. If incidents like Mr. Fortano's become more common, I could believe that Sacremento could outlaw UOC as well as current CCW laws rather than reforming the mess that California gun laws have become.

Unloaded Open Carry in California? Asinine.