Open carry is the 2nd Amendment

Recently, I was doing an interview with an NBC affiliate in Texas regarding the initiative to decriminalize open carry in that supposedly gun-friendly state. I was discussing the fact that, despite Texas’ nationwide reputation as a bastion of rugged individualism, they are in fact, out of line with the vast majority of states where individual gun rights are concerned.

During the interview, the anchor asked me the question “What do you say to those 2nd Amendment supporters who oppose open carry?” I have been asked this question before and had always answered it by talking about the political and public policy benefits of open carry. However, it suddenly occurred to me that the question, as asked, made absolutely no sense. My answer, paraphrased for brevity, was “If you are a 2nd Amendment supporter then you are, by definition, a supporter of open carry because open carry is the right that the 2nd Amendment is enumerating!”

I then went on to discuss the history of carry in the United States and the fact that while today, concealed carry is seen by much of the populace as synonymous with the right-to-carry, it is not, in fact, a right in most states (residents of Vermont may pat themselves on the back at this point). Rather, in the vast majority of states, concealed carry is held to be a state regulated privilege and this was affirmed by the majority opinion in the landmark 2008 ruling in District of Columbia v. Heller.

Additionally, the constitutions of several states bear out this historical view of the dichotomy between the right of open carry and the privilege of concealed carry.

New Mexico
No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons.

Montana & Colorado
The right of any person to keep and bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question; but nothing herein contained shall be held to permit the carrying of concealed weapons.

The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person …

The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.

The right of every citizen to keep and bear arms in defense of his home, person, or property, or in the aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.

That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.

All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: First: The right of enjoying and defending their lives and liberties. Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

North Carolina
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; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.

Now at this point, I should rush to point out that I am an avid supporter of concealed carry laws and am not in any way downplaying their public policy benefits. The concealed carry movement that has swept the nation over the last two decades has done more to prevent crime and empower law-abiding citizens than any other public policy movement in my lifetime. But this does not change the fact that the founding fathers bore their arms openly and proudly and wrote the 2nd Amendment in that context.

Therefore, when 2nd Amendment supporters attack open carry as detrimental to the concealed carry movement, they are advocating sacrificing a right for a privilege.

Is that a deal we are really ready to make?

About John Pierce

Monachus Lex is written by Virginia attorney John Pierce. John is a life-long gun rights advocate, an NRA certified instructor and co-founder of the nationwide gun rights group

He has an undergraduate degree in Computer Information Systems, an MBA from George Mason University and is a 2012 Honors Graduate of Hamline University School of Law in St. Paul, MN.

Professionally, John is a member of the American Bar Association Second Amendment Civil Rights Litigation Subcommittee and his writings have been published by the ABA Civil Rights Litigation Committee and the ABA Minority Trial Lawyer Committee.

In addition, his open carry advocacy has been featured on Nightline and The Daily Show With Jon Stewart.
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