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.

Amendment to Repeal AB 962.

As reported by the California Rifle and Pistol Association:

AB 962 becomes effective on February 1, 2011. But not if Assemblyman Curt Hagman has his way. He has amended his bill, AB 373, to repeal AB 962 before the effective date.

AB 373 is a bill designed to clarify handgun possession during certain legal activities. This bill went nowhere during the first year of the legislative session, and so it will need all of our support if it to pass in the next year of the session.

Please read the information at the CRPA link above, and then act to help repeal AB 962. It may be a narrow chance at this point, but it is a chance.

Also, please thank Assemblyman Hagman for his support: assemblymember.hagman@assembly.ca.gov

Bottom Line:

I think that this has no chance of succeeding. Why would the legislature support the repeal of a law that it just passed, and that the Governor just signed?

We must come up with impacts of AB 962 that were unintended, but that are harmful for lawful gun owners. Arguments that were put forward previously for opposing AB 962 will not work a second time around. We mustcome up with something new. See the CRPA page for details.

AB 962 - CalGuns will Challenge It in Court

One of the best web sites I know of to learn about legal issues involving gun rights is David Hardy's Of Arms And The Law. In a post about Governor Schwarzenegger's signing statement for AB 962, Bill Wiese of the CalGuns Foundation posted a statement confirming CalGuns resolve to challenge AB 962 in Federal Court. That post also outlined the legal strategy they intend to pursue.

This lawsuit will be very interesting to follow.

While AB 962 was wending its way through the California legislature, I often wondered if it could not be attacked via the Commerce clause of the United States Constitution. But in a reply to a post that brought up just that idea, Bill Wiese replies:

We'd prefer a winning strategy. Commerce clause attacks may well result in negative outcomes or way more handwaving and time up the appeals chain. Why not go direct with a clean parallel case?

I am not a lwyer, but I would have thought that a Commerce Clause strategy would be a winning strategy. Who ever heard of the FAAAA '94? I hope that this case does not lose at lower level courts so that The Volokh Conspiracy can weigh in with cogent legal analyses on the case.

AB 962 - Governor Signs the Bill.

Anthroblogogy is reporting that Governor Schwarzenegger has signed AB 962, meaning that ammunition restrictions will go into effect in 2011.

They also speculate that there may be a legal challenge to this bill under Federal preemption laws, but that remains to be seen. In any case California shooters are screwed.

Thanks Sacramento!

Cabelas Announcement Concerning AB 962

For all of the attention Cabelas announcement that they will end mail and internet order ammunition sales in California if AB 962 becomes law, it has been hard to find the actual text. Here it is at this link.

There have also been rumors that Cheaper Than Dirt will also suspend sales of ammunition to California purchasers, but I have been unable to find an official press release to that effect.

I can say without any doubt that one effect of AB 962 will be to drive up the price of ammunition. I buy ammunition from Cabelas in bulk in order to save money. Once AB 962 becomes law, that source will be closed to me, and I will have to use brick and mortar gun shops. Besides that fact that in the Bay Area there are not a lot of places that sell ammunition (Wal Mart stores don't in San Jose), the overhead of operating a store drives up the cost.

So, all one can do is stock up prior to the effective date, February 11, 2010, and then arrange to go out of state to get large supplies of ammunition. And does anyone think that criminals will not also get their ammunition smuggled in as well, or steal it from legal owners.

Right, I thought so.

AB 962: Sign or Veto - We'll Know By Sunday

Governor Schwarzenegger has hundreds of bills on this desk for his signature or his veto, and he has signed only three, according to this article in SFGate.

It turns out that, in another standoff with the legislature, the Governor is threatening a mass veto of hundreds of bills if he does not get his way in negotiations over the state's water system.

While I would like AB 962, SB 585, and SB 41 to not become law, based on their lack of merit, I will take what I can get if they are swept up the the Governor's fit of pique.

What do I think will happen? The parties in the water negotiations will reach a compromise agreement, and the Governor will sign all three bills. While Schwarzenegger is a member of the Republican Party, that is not the same as saying he is a conservative, which may be said of the Republican Party entirely.

California hates guns, and would like to see them disappear. Get ready to fork over a thumb print for higher priced ammunition.

I'm Back.

After a very busy summer in which I simply had no energy to think through additional posts, I have returned to this blog.

And it seems that the world has changed. Before the tone of the blog was concentrated on gun rights, and these issues are still important, even as AB 962, SB 585, and SB 41 sit on Governor Schwarzenegger's desk for signature or veto.

But it seems that I really should contribute to the biggest debate of the day: healthcare reform. I will do so in upcomming posts as it now seems that Congress has gotten off the dime and has bills ready for debate.

I will also be keep posting on the progress of McDonald v. Chicago, now accepted for argument before the Supreme Court, as well as more local gun rights cases here in California.

I hope those few of you who have been following my blog are still around, and that new readers will find my posts enlightening and informative.

AB 962 - Passed by Assembly, Heads to Senate

Well, people, we have one more chance to stop this thing. That's right, AB 962 has was approved by the Assembly this week by a vote of 42 to 31, and now goes to the Senate for a vote there. I am sorry to say that my Assembly Member, Jim Beall, voted in favor of this thing.

So, to reiterate, AB 962 proposes regulations on the purchase of handgun ammunition. All sales of ammunition greater than 50 rounds must take place in a face-to-face transaction, and the amount of ammunition purchased, and the identity of the purchaser (thumbprint, name, address and telephone number, driver's license number, date of birth) must be recorded.

This means that the purchase of ammunition through the internet will no longer be legal, and will probably stop.

Do you buy ammunition through the internet? I know that I do, because it is usually cheaper than purchases at gun shops. There are also decreasing numbers of gun shops that I can purchase ammunition from in my area. This law will also undoubtedly make ammunition more expensive.

Contact your state senator to log your opposition to this bill.

AB 962 - Passed Out of Assembly Appropriations Committee

AB 962, a bill that would regulate handgun ammunition purchases in the state, and prohibit sales of handgun ammunition over the Internet, has passed an Assembly Appropriations Committee vote and advances to the Assembly floor.

This bill would certainly accomplish two things. First, ammunition will become more expensive and vendors are forced to be licensed and keep additional records in the course of their business. Second, sales of ammunition over the Internet would be prohibited in California. The net effect will be to make ammunition more scarce for law abiding shooters, without doing much to deter crime.

Now is the time to contact your Assembly member to urge their opposition to this bill. Find your state Assembly member as this web site, and voice your opposition.

AB 962 - Appropriations Committee Hearing May 6, 2009

The Assembly Appropriations Committee is scheduled to have a hearing on the merits of AB 962, a bill introducing sweeping new regulations on the sale of handgun ammunition. Most importantly it would require all sales to be made in face-to-face transactions, and that records be kept including the identity of the purchaser, the amount of ammunition purchased, and type of ammunition purchased.

Private transfers of ammunition in amount greater than 50 rounds would be prohibited by all by licensed ammunition vendors.

The hearing is scheduled for May 6, 2009. It is now time to contact the members of the Assembly Appropriations Committee to lodge opposition to this bill. The following lists the members of the committee.

De León (Chair) (D-45), 
Nielsen (Vice Chair) (R-2), 
Ammiano (D-13) , 
Calderon (D-58), 
Davis  (D-48), 
Duvall (R-72),
Fuentes (D-39), 
Hall (D-52), 
Harkey (R-73), 
Miller (R-71), 
J. Pérez (D-46), 
Price (D-51), 
Skinner (D-14), 
Solorio (D-69), 
Strickland (R-37), 
Torlakson (D-11)

This bill is of course intended to keep ammunition out of the hands of criminals, but it remains to be proved that the new purchase restrictions would actually have that effect. Felons are already prohibited from possessing firearms and ammunition, but they have then anyway. This bill simply makes something that is illegal even more illegal, while mostly impacting law-abiding gun owners. Criminals already have trade networks in place for importation and sale of illegal goods (drugs, guns), and would have no problems adding ammunition to the mix.

Ammunition purchases over the internet would be prohibited. The increased regulations and required record keeping will increase the price of ammunition. Some ammunition vendors may stop selling ammunition. Many chain stores that sell ammunition in other states, notably Wall-Mart, do not sell ammunition in Santa Clara County, and others that do, like Big 5 Sporting Goods, may stop as a result.

I think we should demand that lawmakers present a viable proof that this bill would impact violent crime, and if they cannot, then it should be voted down.