Long Gun Open Carry - Comming to A Starbucks Near You!

Well, Governor Brown did it.  Starting January 1, 2012, it will be illegal to carry an unloaded handgun in public in California.  But as noted here, and many other places, this bill says nothing about log guns.  I think we will see more protest activities in the future, but this time people will be carrying their long guns, especially so-called assault weapons.

This may not be a wise policy.

When confronted with firearms in public, our legislature reacts by outlawing the practice of carrying guns, even unloaded guns, where the easily frightened sheeple of California can see them.  Given that most people in California think that AK-47 and AR-15 rifles are illegal to possess because of the assault weapon ban, the sight of bullet button-equipped rifle might be just a little alarming, I would expect the legislature to act to prohibit public carry of unloaded rifles as well.

They may also re-visit the CA assault weapon law in order to outlaw Off-List Lowers and the use of bullet buttons.  It would be interesting to see if such efforts would survive the inevitable court challenges.

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Update 10/11/2011:

Here is one reaction from an UOC advocate, Yih-Chau Chang, press secretary of Responsible Citizens of California:

Chang added that many such advocates, including himself, carry exposed, unloaded handguns on a daily basis and will likely choose to openly carry unloaded long guns in lieu of handguns once the law takes effect in January.

I wonder what the reaction of the Legislature will be once people start carrying rifles in public.

Brady Campaign Quote on AB 144

The following quote appeared in this article that ran in the Los Angeles Times:

Gun control advocates hope that California will now pave the way for the rest of the country to outlaw the practice.

"Openly carrying a gun with [an ammunition] magazine in your back pocket into Starbucks and other establishments creates a culture of fear and intimidation,'' said Brian Malte, director for the Brady Campaign to Prevent Gun Violence. "It is irresponsible and dangerous.''

"People in other states look to see what California does,'' he said. If Brown signs the bill, "other states will follow suit.''

People in other states look at what California does, and them they laugh their asses off.

The Brady Campaign comment is really a combination of disinformation and hopeful speculation.  Open carry of loaded weapons is legal in all but 9 states, and is unlikely to change soon, as many states allow concealed carry with a license.  California, in effect, has already banned open carry because carry of loaded weapons has been illegal in incorporated areas for about thirty years.

But AB 144 is not trivial legislation.  It is in fact very important that this bill be defeated.  The goal of the gun-rights community is to normalize the carry of weapons in public by law-abiding citizens, a goal that I completely support.  AB 144 is an attempt to further marginalize that practice, so defeating it is important.

The Brady Campaign, LCAV, GVPC, and other anti-rights groups realize this, and they realize that carry is the current battleground.  They also realize that carry is the last line: if they loose this, then gun control as a political issue will be dead.  That is why AB 144 is so important to Anthony Portantino and other anit-gun activists.  This is their last stand.

AB 144 - Unconstitutional Upon Passage?

A good article on AB 144 from the California Independent Voter Network.  A pretty even-handed article I would say. But what really got my attention was in the comments, one in particular from Charles Nichols, the well-known LA History Examiner:

By the way, we have already had two Federal court cases in the 9th Circuit upholding the right to openly carry a firearm in public. The first was US v Vongxay, which dealt with it indirectly, and Peruta v San Diego where the Chief Federal judge invited a challenge to California's unique requirement that firearms be unloaded until a person is in danger (plus a few other exceptions). She said she could not rule on the constitutionality of that law because neither party in the case challenged it. However, the right to openly carry a firearm, and have matching ammunition with you, was affirmed.

Which means we are just one lawsuit away from Loaded Open Carry being legal in California.

AB 144. the State ban on Open Carry is unconstitutional the moment it is passed. All it will take is a Federal injunction to stop its enforcement. I guess Portantino never took Law 101. The US Supreme Court sets the minimum level of rights when it concerns a Federal question, like the Bill of Rights.

 Does anyone know if this is true?  Is AB 144 unconstitutional on its face?  Is loaded open carry really that close to legality?

Abthony Portantino on AB 144

Anthony Portantino, (D - La Cañada Flintridge) commenting in the Pasadena Weekly about AB 144, his bill to ban the open carry of firearms:

“It does not take anyone’s rights away for owning a weapon,” he said. “But what it does say is the needless display of automatic firearms on Main Street California does not really have a point other than making a political statement. And should we have weapons be a part of a political discussion?”

So, Mr. Portantino, when you disagree with an opponents political message, you feel that the proper response is to outlaw the message?  The  political conversation here is on the question the rights of citizens to be armed in their daily life, a right that is denied to Californians due to the arbitrary and capricious implementation of the CCW policies in this state. If AB 144 passes, then even Unloaded Open Carry will be denied to us.

And take note his use of "automatic firearms" intended to strike fear in people.  Nobody is open carrying automatic firearms.  They are semi-automatic firearms.

"Carry" Not A Core Right, Yet

A recently introduced bill in the California State Assembly, AB 144, once again will attempt to outlaw open carry of unloaded firearms. But this bill is quite different from AB 1934 introduced last year. AB 1934 sought to eliminate holstered handguns as an exception to the concealed weapon law, making open carry of an unload holstered pistol the same as carrying a concealed weapon, requiring a California CCW permit. In retrospect this would have created problems for all kinds of occupations that are armed in public, like armored car guards.

AB 144, in contrast, makes the open carry of an unloaded handgun in a public place a crime, a misdemeanor punishable by one year in jail and a fine that cannot exceed $1000. To get around the problems that AB 1934 might have caused, AB 144 specifies a very long list of occupational exceptions, allowing a large number of people to open carry handguns. Only ordinary citizens and criminals are, theoretically, prohibited.

A reader of Left Coast Conservative, asked me if I knew about AB 144, and if I thought that its passage into law would help the Peruta v. County of San Diego prevail. Chris P wrote:

BTW, did you hear about the new attempt to ban open carry (California AB 144)? I think this is gonna get interesting. I'm not sure how I feel about the open carry movement yet, but it was my understanding that the San Diego lawsuit regarding concealed carry had a lot to do with the open carry law. Anyway, I thought the ruling was that since California law allowed unloaded/open carry, self defense was not "good cause" to concealed carry. You think this will be significant? I'd like to hear your take on it.

This is, I think the part of the decision that gives Chris P his hopes that AB 144 might actually advance carry rights in California:

Accordingly, Defendant argues that concealed carry pursuant to Penal Code section 12050 is not the sole outlet for carrying a handgun for self defense. Defendant highlights other California provisions that permit unloaded open carry and loaded open carry if the individual is in immediate grave danger.

In other words, the Defendant's administration of the CCW policy is not subject to strict scrutiny because persons can avail themselves of other means to carry weapons for self defense. This inspires me to re-read the decision granting summary judgment to the defendant. What I found was this passage, on page 11:

Neither party has cited, and the Court is not aware of, a case in which a court has employed strict scrutiny to regulations that do not touch on the “core” Second Amendment right: possession in the home.9 If it exists, the right to carry a loaded handgun in public cannot be subject to a more rigorous level of judicial scrutiny than the “core right” to possess firearms in the home for self-defense. See Heller, 128 S. Ct. at 2717 (focusing on the home as the place “where the need for defense of self, family, and property is most acute”); McDonald, 130 S. Ct. at 3036 (quoting same). If anything, the opposite is true; unlike possession in the home, carrying a concealed firearm in public presents a “recognized threat to public order” and “poses an imminent threat to public safety.” People v. Yarbrough, 169 Cal. App. 4th 303, 313-14 (Cal. Ct. App. 2010) (quotation marks and citations omitted); see also McDonald, 130 S. Ct. at 3105 (Stevens, J., dissenting) (“firearms kept inside the home generally pose a lesser threat to public welfare as compared to firearms taken outside . . .”). At most, Defendant’s policy is subject to intermediate scrutiny.

So the first problem that Peruta has is that the judge does not recognize “carry” to be the core right protected by the 2^nd Amendment, so intermediate scrutiny is appropriate to judge the validity of the Defendant's policy. Once this is established the reasoning to grant the Defendant's motion is swift:

Accordingly, Defendant argues that concealed carry pursuant to Penal Code section 12050 is not the sole outlet for carrying a handgun for self defense. Defendant highlights other California provisions that permit unloaded open carry and loaded open carry if the individual is in immediate grave danger.

So, if AB144 is passed, the alternate means is no longer available, so that should open up the CCW policy for litigation, right? Perhaps not. Even though cases cited in Heller (State v. Chandler, Nunn v. State, Andrews v. State, State v. Reid), allowed concealed weapons bans because open carry was available, so the 2^nd Amendment right was not eliminated, passage and adoption of AB 144 will not eliminate the ability of citizens to carry weapons. CCW permits will still be available: apply and you may be issued a CCW permit.

Arbitrary and capricious administration of a CCW policy by a Sheriff will not be cited as unconstitutional until and unless “carry” is ruled to be a “core right” denoted by the 2^nd Amendment. Once “carry” is recognized as a core right, then AB 144 may be used to prevent arbitrary and capricious implementation of CCW policies in Califronia.

For more information about current litigation, please refer to the Calguns Foundation Litigation Past and Present page, your one-stop-shop for guns rights litigation information.

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UPDATE 2/19/2011:

Maybe I am wrong about what effect passage of AB 144 might have on litigation to liberalize CCW policies.  Take a look at this passage from the Pasadena Weekly:

Here in California, where a bill to prohibit gun owners from publicly carrying unloaded weapons in plain sight is set for debate in the state Assembly, gun rights advocates also doubt that ability. They say the bill, sponsored by Assemblyman Anthony Portantino, D-La Cañada Flintridge, would instead force jurisdictions to issue concealed weapons permits to practically all comers, given recent court rulings affirming the people’s right to bear arms.

“I’m not sure they appreciate the legal can of worms they are opening here,” said Chuck Michel, spokesman for the California Rifle & Pistol Association.

 If Chuck Michel thinks AB 144 might bust things open, I am inclined to take him at his word.