Handgun open carry law unconstitutional?

January 4, 2012

A California resident filed a lawsuit arguing that a law prohibiting the open carrying of an unloaded handgun is unconstitutional. [CaliforniaWatch]

Charles Nichols filed the lawsuit in federal court against the state seeking to overturn restrictions on where he can display a loaded or unloaded handgun.

Earlier this week, AB 144 went into effect. It expands California’s firearm regulations that previously prohibited publicly carrying a loaded handgun to also make it illegal to openly carry an unloaded handgun.

In 2008, the U.S. Supreme Court struck down strict gun regulations in Washington, D.C. because they were unconstitutional. Nichols argues in his lawsuit that California’s carry laws should meet with a similar fate.

“By banning fully functional, loaded handguns from being openly carried for the purpose of self-defense, (California’s statute) is a more restrictive ban than the law struck down in (Washington) as unconstitutional,” the lawsuit says.

Proponents of the law contend it allows for gun owners to hunt and protect their homes and that it is not necessary to carry a weapon when shopping or eating out.



  1. ds_gray says:

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” – Original language, Adopted 1791.

    The very purpose of this amendment has been argued and distorted for so long, that most people don’t realize that having an armed citizenry was to prevent tyranny in the government, not so that people could go out and pop off a few rounds (in private, secured in a locked container, secured with trigger locks, ammunition stored in a separate locked container, after waiting 15 days for the permit to buy, etc. etc.)

    You wanna know why this is such a touchy subject? Because people are tired of watching their rights being whittled away, year after year, only to see that they have no rights at all.

    Here’s another one – try and see if you can detect what the authors are trying to convey;

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    BTW: That one is called the First Amendment.

    See how far removed the ‘press’ part is from the rest? Sort of an add-on to the religion part, which the authors really didn’t want anybody messing with. But yet here we are, exercising that right, the press part, openly, without contest. Yet we allow the government to chew away at the 2nd amendment, and parts of the 1st amendment by parsing them in all sorts of ridiculous ways to make it ‘reasonable’.

    “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” – Benjamin Franklin 1775. Those of you who fear private gun ownership because you’re concerned about your safety need to memorize this one.

    There is no ‘give and take’, marginalization or ‘reasonable-ness’ with the Constitution. It is what it is, and must be followed to the letter, unless we the governed choose to change it.

    California’s elected officio-crats have been stomping on our rights and need to stop. Now.

    (46) 48 Total Votes - 47 up - 1 down
    • Side_Show_Bob says:

      Finally, something truly worth reading!

      Well said, thank you!

      (15) 17 Total Votes - 16 up - 1 down
    • bobfromsanluis says:

      “There is no ‘give and take’, marginalization or ‘reasonable-ness’ with the Constitution. It is what it is, and must be followed to the letter, unless we the governed choose to change it.”

      It sounds (or looks) like you are in the camp of “strict Constitutionalist”, meaning, someone who reads the Constitution as it was written, to be interpreted “strictly” as it was apparently intended. Fine, that is your opinion; if you also read some of the writings of the founding fathers you will see that the intention of the Constitution was to be a “living” document, with the intention that the document could grow, or evolve as our country matured and as society changed over the years. As a “strict Constitutionalist” do you believe that it is a mistake to allow for other items to be added to our Bill of Rights over the years? Surely you would believe that if your view of the Constitution is correct, all of the amendments after the original ten are somehow “not in accordance” with the intention of the founding fathers?
      If you read my original comment that I posted on this subject, I never ever suggested that our Constitutional right to possess firearms be removed; what I suggested is that there should be a “reasonableness” attached to the ownership of firearms; I see that you disagree with my premise, which is exactly the point of my follow up comment. There is no “reason” that a convicted felon should be lawfully allowed to own a firearm, there is no “reason” that an individual should be allowed to possess a fully automatic firearm (Mac-10, machine gun, Uzi, whatever), there is no “reason” that an individual should be able to own a rocket launcher or should fired SAM missile launcher. You will most likely attempt to argue that your ability to own such weapons is in accordance with the 2nd Amendment since in your view, the primary reason for the 2nd Amendment is to prevent “tyranny” by the government; you do notice that within the 2nd Amendment it mentions “a well regulated militia”? It would seem that the intention was to have a citizen army available to defend our country, more than attempt to violently overthrow our own government. Any person who thinks that any number of firearms they may own, no matter how large a caliber they may have, no matter if they illegally own fully automatic weapons, if anyone thinks that they are going to fight governmental “tyranny” with their own armory is delusional at best.
      Own, possess, keep as many shotguns, rifles and handguns as you wish, I do not want to deny you that ability; my request is to try to abide by the laws of the land, lawfully register your weapons and if you carry loaded handguns on your person, put it away before you go into a court of law or go into a airport, and make sure that if you keep any in your vehicle to keep your car locked. If you want the laws to change to make it easier to conceal carry legally, come up with some good “reasons” and you could make some progress in getting laws passed that you want.

      (-24) 28 Total Votes - 2 up - 26 down
      • The Gimlet Eye says:

        I disagree. I don’t think we should have to register our weapons at all. Period. The gd gubmint can’t keep track of our money. What makes you think they can keep track of our weapons? And what the hell are they going to do with all those mountains of informations on weapons, anyway???

        (20) 26 Total Votes - 23 up - 3 down
        • bobfromsanluis says:

          “And what the hell are they going to do with all those mountains of informations on weapons, anyway???”
          Track the ownership of a firearm used in the commission of a felony? Track down the current owner of said firearm used in that felony?

          (-6) 12 Total Votes - 3 up - 9 down
          • ds_gray says:

            Easy to answer that one – when the government finally convinces the populace that the 2nd amendment is about the right to own a hunting rifle and nothing else, they’ll be compiling lists of gun owners, serving search warrants for ‘illegal’ weapons, and confiscating them. Then they’ll destroy them before you can file any redress in court to get them back.

            This has already happened in this state, in the cities of Oakland, Berkeley and Sacramento.

            (20) 22 Total Votes - 21 up - 1 down
            • Crusader says:

              If that ever happens there is going to be a terrible accident while on one of my ocean-shoot adventures. ALL my firearms (including those which were formally legal) will be lost at sea. That’s MY “redress”, and probably that of thousands of others…

              (6) 6 Total Votes - 6 up - 0 down
          • The Gimlet Eye says:

            It’s fine to punish a felony. But why do they have so damned much trouble punishing OTHER types of felonies? Why so much concentration on OUR guns?

            Why did Donald Rumsfeld announce that $2.3 TRILLION was missing from the DOD 1 DAY BEFORE 9/11? Surely there were some felonies involved? Why wasn’t anybody arrested? Why wasn’t there an investigation which would have yielded some results that made sense?

            Why did it take the SEC 10 YEARS and their arms twisted out of their sockets to get Bernard Madoff?

            How about all the MISSING MONEY (google it)?

            Your concern for punishing “felonies” is fine, but the gd gubmint is mighty SELECTIVE about which felonies it deigns to prosecute!

            Why is that?

            Anyway, “tracking down” a weapon used in the commission of a crime does not a conviction of a criminal necessarily make. As I said, the gd gubmint CAN’T keep track of all the things that it purports to. That’s just not possible.

            (3) 3 Total Votes - 3 up - 0 down
      • ds_gray says:

        A great Empire, like a great Cake, is most easily diminished at the Edges. – Benjamin Franklin 1773.

        As I wrote in my original post, until We change the constitution, it stands, as written, to be followed, both by the People AND the government. As far as the document being ‘living’ or alive or in some other form of animation of its own, the process was created to amend it as needed. Otherwise, what’s the point? Why have a document that’s up for interpretation at the whims of any political group, left, right or any point in-between?

        We are a constitutional republic, and this document is the foundation of our law and defines our freedoms and sets limits on THE GOVERNMENT. If that foundation is in flux and constantly changing – or ‘living’, anything built above will be unstable to be sure.

        I did not write anything about being unwilling to see the constitution change. But until we as free people do change it, by following the laws that govern the change, STOP TRYING TO MARGINALIZE IT.

        BTW The Bill of Rights is basically the first round of changes to ‘the living document’ and was drawn up and ratified. It is the very model of how to do it. So if you want to see the restrictions you have mentioned in your post above added to the constitution, you know the steps – get to work! Until then, get off my liberty! Its not up to you to decide who can and should or what size or type of arms we are allowed to possess. What part of ‘shall not be infringed’ do you wish to marginalize?

        (12) 14 Total Votes - 13 up - 1 down

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