9th Circuit Ruling on Open Carry Laws: Read It For Yourself

Andrew Donaldson

Born and raised in West Virginia, Andrew has since lived and traveled around the world several times over. Though frequently writing about politics out of a sense of duty and love of country, most of the time he would prefer discussions on history, culture, occasionally nerding on aviation, and his amateur foodie tendencies. He can usually be found misspelling/misusing words on Twitter @four4thefire and his writing website Yonder and Home. Andrew is the host of Heard Tell podcast.

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38 Responses

  1. Oscar Gordon says:

    I don’t completely expect the SCOTUS to over turn that, or even take up the issue.Report

    • Jaybird in reply to Oscar Gordon says:

      I think that SCOTUS is quietly saying hoping that none of the other circuits rule that, of course!, you can open carry if you have an open carry license. Cops can open carry, after all. Why wouldn’t a trained citizen (as demonstrated by their license!) be similarly able to carry one?

      It’s not like “cops” are a special constitutional category.

      And, if they do, then the Supreme Court will have to pull a “well, you have to understand…” pretty dang quickly to find some answer that pisses off everybody to a 3 but not a 5 or 6.Report

      • Mike Schilling in reply to Jaybird says:

        a trained citizen (as demonstrated by their license!)

        I presume that’s sarcasm.Report

        • Jaybird in reply to Mike Schilling says:

          You should see the opinions of people who think that the cops get training and, therefore, it’s okay for them to have guns.Report

          • Slade the Leveller in reply to Jaybird says:

            What, you don’t think an hour on the range every year makes you a sharpshooter?

            I’m always reminded of this exchange on The Simpsons when I read stories of police firefights.

            Lou: Hey, Chief, can I hold my gun sideways? It looks so cool.
            Wiggum: Ah, sure. Whatever you want, birthday boy.


      • Michael Cain in reply to Jaybird says:

        Enough Appeals Courts have ruled in enough different ways that the SCOTUS really needs to take a case on whether jurisdictions can impose limits on public carry, and if so, what restrictions. The 7th ruled that Illinois had to allow public carry in some form (the legislature passed a “shall issue” law for concealed carry permits, along with education and registration requirements, which the Court found acceptable). The 3rd upheld New Jersey’s effectively total ban.Report

        • Jaybird in reply to Michael Cain says:

          This is the thing that kinda bugs me. I think that Jersey should be allowed to, effectively, totally ban guns (except, of course, for the authorities and the politically connected).

          And I think that Wyoming should be allowed to tell Starbucks that “we’re not going to get law enforcement involved in pushing corporate policy”.

          And Jersey can be Jersey and Wyoming can be Wyoming.

          But, apparently, that ain’t sustainable.Report

          • Oscar Gordon in reply to Jaybird says:

            Exactly, this is very much a state issue, and it should be. And if there are conflicting rulings, SCOTUS needs to settle that.

            As to your other point, I’d love for SCOTUS to state that states can not require private citizens to have training or requirements that police don’t have to meet.Report

          • Michael Cain in reply to Jaybird says:

            One of the problems is that Wyoming doesn’t just want minimal carry restrictions in Wyoming, they want the rules to stay the same for them when they go to New Jersey (eg, the idea of a federal law requiring all states to honor carry permits issued by any state is popular).Report

            • Oscar Gordon in reply to Michael Cain says:

              I don’t have a problem with that, as states have to honor marriages and drivers licenses from other states.

              Of course, if states have to honor others, then you no longer get to have 6 permits from different states in order to try and game reciprocity.Report

              • Tricky argument.

                Each state has to accept that the drivers license from another state allows the holder to operate a car. The out-of-state driver is still expected to be familiar with and comply with all of the laws and regulations on driving in the state they are visiting.

                How do you want to handle Illinois’ FOID requirements, which is basically a registration program? You can’t legally carry an unregistered gun in Illinois.Report

              • Oscar Gordon in reply to Michael Cain says:

                I agree, it would be tricky. You could enact reasonable constraints, such that your permit from Wyoming is only valid in IL for the first 7 days you are in the state, and after that you need to leave, or register. Or if a given state does not allow for open carry, you must carry concealed, etc.

                Part of the point of honoring permits is so that a place like NJ can’t cause you grief simple for carrying while passing through, and it could be structured like that.Report

              • It won’t stop them. I went to graduate school in Texas and then took a job in New Jersey. On my first day, driving down the Garden State Parkway, a state trooper pulled me over because of my Texas plates, searched my car, and gave me a lecture about all of NJ’s gun laws.Report

              • Oscar Gordon in reply to Michael Cain says:

                True. I know NJ & NY do that even today, and the most the federal courts do it dismiss the cases once they reach them. The states don’t get slapped for it. So any kind of honoring would require federal penalties for states that abuse that honor. Which means you’ll never get places like NY or NJ to sign on to it.Report

              • “Your honor, the officer had no probable cause to search my client’s car.”

                “He had Texas plates. Overruled.”Report

              • In most western states it’s a rule of thumb for cops: if you have a chance to hassle someone with Texas plates, do so.Report

              • Oscar Gordon in reply to Michael Cain says:

                Remind me again why we give cops such latitude…?

                Oh, wait, right, drugs.Report

              • JS in reply to Oscar Gordon says:

                And why did we switch from a treatment based approach to drugs to a law enforcement one?

                Give you a hint: It’s not unconnected to the weird disparity in drug law enforcement between demographics.

                It’s real swell to see how a cynical political tactic basically took all of the “bad” parts of policing and turned it up to 11 by turning everyone from civilians to be served into potential criminals to be watched like a hawk.

                You never know who has a dime bag in their pocket, so better be suspicious. And the fact that you’re given tanks and military body armor means that dime bag holder is super dangerous.

                You don’t go loaded for bear unless you expect a dangerous bear.Report

              • Oscar Gordon in reply to JS says:

                I’ve read the history of the WOD, so… Yep to all that.Report

              • Philip H in reply to Oscar Gordon says:


              • Well, here at least it’s more regarded as a moral obligation for everyone to harass the Texans.

                When Trump misspoke about building a border wall across the southern boundary of Colorado, some number of pundits jumped at the chance and asked if we could extend it north along the eastern border, and then do checks to turn back Texans.Report

              • Jaybird in reply to Michael Cain says:

                When we first moved here back in 1990, everybody *HATED* Texans. I didn’t really understand it until I got my car registered and had to get an emissions test.

                When I mentioned that I had to get an emissions test, I expected to hear a bunch of people tell me that I just had to buy a bottle of such and such, pour it into the tank right before giving it a full tank of gas, and then get on the highway and punch it up to Monument and then full speed ahead to the emissions test shop.

                Instead, I had a bunch of Texans tell me “My car’s registered in Texas so I don’t have to get it tested!”

                Soon I, too, started hating them.Report

      • Philip H in reply to Jaybird says:

        So lets get the terms clear – in open carry states you don’t need a permit or license or anything else to open carry. In “Shall Issue” Concealed Carry states you only have to prove who you are and that you aren’t a felon who has lost his rights to own. in “May Issue” states you usually have to have a burden of proof of need (which is what the HI case hinges on).

        That Law enforcement has training is a bonus, but unless a state has particular statute requiring it to be sworn, most LEO’s could be sworn absent documentation of training.

        I’ll add that many of us on the left – gun owners included – have advocated for licensing, with proficiency demonstrations and periodic renewals, and even that “common sense” approach is too much for the diehard NRS crowd.Report

  2. j r says:

    This appears less about “open carrying” than about “carrying.” In every jurisdiction that I know of, the bar is much higher to conceal carry than to open carry. That is to say, there are places where you can legally walk around with a pistol displayed openly on your belt, but that require you to have a concealed carry permit to wear the same pistol in a holster under your jacket. This makes sense as the people most likely to use a gun in the commission of a crime are the most likely to keep the gun hidden.

    Open carry as a political issue has always seemed completely divorced from the criminal justice/public safety considerations around firearms regulation. If I am getting this right, DC v Heller stated that there is an individual right to keep and bear arms but that jurisdictions could regulate guns so long as they didn’t make them outright illegal. DC then made it legal to own a handgun but established a system where you could only get one that was brought into the District by a licensed dealer, of which there was exactly one. And in NYC, there is technically a way to apply for a gun permit, but permits are almost never issued. You basically have to be very wealthy or have some political pull.

    If the status quo in DC and NYC are compliant with the current 2nd Amendment case law, it’s hard to see how Hawaii’s would not be as well.Report

    • Damon in reply to j r says:

      No, it’s not mainly about “open carrying’. The money quote is: “the open carrying of small arms capable of being concealed, whether they are carried concealed or openly,” Judge Jay Bybee, appointed by President George W. Bush, wrote for the majority.”

      There is no other reasonable concussion other than “it’s both”, unless Judge Bybee wants to walk back that statement.

      Also, I’ve read in other places that the 7th circuit came to the opposite conclusion.Report

  3. Philip H says:

    I can’t wait to see the First Amendment gain this much litigation over the restrictions placed on it routinely.Report

    • Brandon Berg in reply to Philip H says:

      Here’s a list of Supreme Court cases involving the Second Amendment.

      And here’s a list of Supreme Court cases involving the First Amendment.

      You will note that one is much, much longer than the other.Report

      • Philip H in reply to Brandon Berg says:

        And no one bitches about the lengthy list of First Amendment constraints . . . .Report

        • Oscar Gordon in reply to Philip H says:

          Please compare and constraint 1st & 2nd Amendment constraints of and ability to exercise the right.Report

          • Philip H in reply to Oscar Gordon says:

            ok here’s one – you need a permit in nearly every jurisdiction I’m aware of to peaceably assemble. And lacking that permit is often the first thing cops go to to break up protests someone doesn’t like.

            You can’t yell Fire in a theatre. And as Sydney Powell is about to find out, you can’t make baseless conspiracy claims about a privet voting machine company in multiple court filings.

            But you can buy a gun same day in Georgia. And that’s what gets screamed about.Report

            • Oscar Gordon in reply to Philip H says:

              Permits, that’s good! So, can the government turn you down for a permit to peaceably assemble just because they don’t like your message? Or is it shall issue?

              PS I’m fine with waiting periods in certain circumstances.

              This your first gun at this shop? You can wait 10 days, unless you have an order of protection.

              Got a carry permit? Waiting period is kinda pointless then, isn’t it?Report

        • dhex in reply to Philip H says:

          aclu, fire, etc?Report

  4. Brandon Berg says:

    Comment in moderation because The Man doesn’t want me providing too much supporting evidence.Report

  5. Marchmaine says:

    Walking right into Robert’s Trap…

    Some States:
    Restricted Guns, Unrestricted Abortion
    Other States:
    Restricted Abortion, Unrestricted Guns

    That’s the Suez Canal of jurisprudence, motherf*ckers.Report