Open carry in the United States

In the United States, open carry refers to the practice of "openly carrying a firearm in public", as distinguished from concealed carry, where firearms cannot be seen by the casual observer.

The practice of open carry, where gun owners openly carry firearms while they go about their daily business, has seen an increase in the U.S. in recent years.[1][2] This has been marked by a number of organized events intended to increase the visibility of open carry and public awareness about the practice.[3] Proponents of open carry point to history and statistics, noting that criminals usually conceal their weapons, a stark contrast to the law-abiding citizens who display their sidearms.[4] Encouraged by groups like The Modern American Revolution,[5] OpenCarry.org, GeorgiaCarry.org and some participants of the Free State Project, open carry has seen a revival in recent years,[6][7][8] but it is not yet clear if this represents just a short-term trend.[9][10]

The gun rights community has become supportive of the practice. Alan Gottlieb of the Second Amendment Foundation has been cautious in expressing support,[11] while special-interest groups such as the aforementioned OpenCarry.org and GeorgiaCarry.org, and certain national groups such as the NRA and Gun Owners of America (GOA) have been more outspoken in favor of the practice.

Open carry is strongly opposed by gun control groups such as the Brady Campaign and the Coalition to Stop Gun Violence.[12][13]

Terminology

A man openly carrying a handgun at a fast food restaurant in Eagle, Colorado.
Open carry
The act of publicly carrying a firearm on one's person in plain sight.
Plain sight
Broadly defined as not being hidden from common observation; varies somewhat from state to state. Some states specify that open carry occurs when the weapon is "partially visible," while other jurisdictions require the weapon to be "fully visible" to be considered carried openly.
Loaded weapon
Definition varies from state to state. Depending on state law, a weapon may be considered "loaded" under one of the following criteria:
  • Only when a live round of ammunition is in the firing chamber of the weapon
  • When a magazine with ammunition is inserted into the firearm, regardless of whether or not a round is in the chamber
  • When a person has both the firearm and its ammunition in his or her possession, without regard as to whether a round is in the chamber or a magazine with ammunition is inserted into the firearm (most common legal definition in "gun-control" states)
Preemption
In the context of open carry: the act of a state legislature passing laws which limit or eliminate the ability of local governments to regulate the possession or carrying of firearms.
Prohibited persons
This refers to people who are prohibited by law from carrying a firearm. Typical examples are felons, those convicted of a misdemeanor of domestic violence, those found to be addicted to alcohol or drugs, and those who have been involuntarily committed to a mental institution.

Categories of law

Today in the United States, the laws vary from state to state regarding open carry of firearms. The categories are defined as follows:

A hunter carrying a revolver in a visible rear holster.
Permissive open carry states
a state has passed full preemption of all firearms laws, with few exceptions. They do not prohibit open carry for all nonprohibited citizens and do not require a permit or license to open carry. Open carry is lawful on foot and in a motor vehicle.
Licensed open carry states
a state has passed full preemption of all firearms laws, with few exceptions. They permit open carry of a handgun to all nonprohibited citizens once they have been issued a permit or license. Open carry of a handgun is lawful on foot and in a motor vehicle. In practice however, some of these states that have May-Issue licensing laws can be regarded as Non-Permissive for open carry, as issuing authorities rarely or never grant licenses to ordinary citizens.
Anomalous open carry states
the legality of open carry varies within state, based on local policies (usually at the county level, but it may also include incorporated cities and towns). In such states, some local jurisdictions may permit open carry, and others may impose varying degrees of restrictions or prohibit open carry entirely.
Nonpermissive open carry states
open carry of a handgun is not lawful or is lawful only under such a limited set of circumstances that public carry is effectively prohibited. They may include when one is hunting or traveling to/from hunting locations, on property controlled by the person carrying, or for lawful self-defense. Additionally, some states with May-Issue licensing laws are NonPermissive when issuing authorities are highly restrictive in the issuance of licenses allowing open carry.
Rural open carry states
open carry is generally prohibited except in unincorporated areas of counties in which population densities are below statutorily-defined thresholds, and local authorities have enacted legislation to not prohibit open carry in such jurisdictions (California). As such, they are also regarded as Anomalous open carry states.

Jurisdictions in the United States

In the United States, the laws concerning open carry vary by state and sometimes by municipality. The following chart lists state policies for openly carrying a loaded handgun in public.

Status of open carry, by state or other jurisdiction
Jurisdiction[14] Permissive Licensed Anomalous/Rural Non-
Permissive
Notes
Alabama Yes[15]
Alaska Yes
American Samoa Yes Open carry is prohibited
Arizona Yes
Arkansas Yes In August 2015 Attorney General Leslie Rutledge issued a non-binding opinion that open carry is legal while not affecting concealed carry, a concealed carry license is still required. Her opinion can be found at http://ag.arkansas.gov/opinions/docs/2015-064.html with the following extracts noted:
California Yes Open carry legal in rural counties with local ordinances allowing open carry. Some of these counties issue a permit for open carry.
Colorado Yes Open carry without a license permitted statewide, except in the City and County of Denver (where open carry is prohibited by local ordinances that pre-date Colorado's statewide pre-emption law).
Connecticut Yes Open carry with a valid pistol permit is legal statewide. Connecticut is Shall-Issue, with Limited Discretion for granting pistol permits. Connecticut is Anomalous for long gun carry, as state law does not address the open carry of rifles and shotguns; restrictions on long gun carry vary throughout Connecticut based on local policies.
Delaware Yes No permit or special license required.
District of Columbia Yes Civilian open carry is not allowed in the District of Columbia.
Florida Yes[17][18] The constitutionality of the general ban on open carry is currently being challenged in the Florida Supreme Court case of Norman v. State[19][20]
Georgia Yes Licenses granted on a Shall-Issue basis.
Guam Yes FOID required.[21]
Hawaii Yes In practice Licenses rarely issued to ordinary citizens. Licenses valid in the issuing county only.
Idaho Yes
Illinois Yes[22][23]
Indiana Yes Licenses granted on a Shall Issue basis. Preemption law enacted in 2011. Indiana recognizes firearms carry licenses issued by all other states.
Iowa Yes
Kansas Yes
Kentucky Yes
Louisiana Yes Open carry is legal in Louisiana. Attorney General Opinion No. 78-0795 - The AG replies to two questions: "1. Is it legal to carry an exposed handgun?" and "2. Do Parishes and/or Municipalities have the power to regulate the carrying of exposed handguns?" The AG responds, "the carrying of an exposed handgun is not illegal, except as provided in LSA R.S. 14:95.1." And citing City of Shreveport V. Curry and City of Shreveport V. Bukhett, 357 S.2d 1078, (LA. 1978) the AG answers " It is the opinion of this office that the state statutes aforementioned have the purpose of establishing a general scheme to control weapons (handguns) and that a fair reading of those statutes show this would constitute an area in which the state has preempted the legislative control and has implicitly authorized the carrying of unconcealed weapons. Therefore, an ordinance enacted by a Parish and/or Municipality regulating the carrying of exposed handguns would be without effect as being in conflict with State Law.
Maine Yes
Maryland Yes In practice Licenses are rarely issued to ordinary citizens. However, no permit is required to openly carry a rifle or shotgun.
Massachusetts Yes In practice Pistol permits are issued by local authorities on a May-Issue basis. Ability to obtain a pistol permit varies between localities. Pistol permits are valid statewide, regardless of where they were issued. In practice, open carry is highly discouraged by authorities, and one may be charged with Disorderly Conduct or Breach of Peace if open carry causes public alarm. Open carry of long guns prohibited.
Michigan Yes[24] No License needed for open carry (not in a Vehicle). A valid Concealed Pistol License (CPL) is required to carry in a vehicle and are granted on a Shall-Issue basis.
Minnesota Yes Licenses are granted on a Shall-Issue basis
Mississippi Yes
Missouri Yes[25] State preemption was passed taking effect in October 2014 and a concealed carry license is necessary.
Montana Yes
Nebraska Yes Open carry is allowed but some localities may have restrictions.
Nevada Yes
New Hampshire Yes [26] New Hampshire allows open carry in all public places; including the state house in Concord, NH. Vehicle transportation is considered concealment, and requires permit.
New Jersey Yes In practice Licenses rarely granted to ordinary citizens. Open carry of long guns with a valid FID card is technically legal, but generally not practiced except while hunting.
New Mexico Yes Open carry of handguns and long guns permitted, per Article II Section 6 of the New Mexico State Constitution. State law does not preempt tribal laws on Native American reservations, except when traversing a reservation on a state-owned highway. Some tribes do not permit open carry, while some others may require a tribal permit for open carry.
New York Yes Open carry of pistols generally prohibited except while hunting or at a range. Open carry of long guns prohibited in most places, except while hunting in designated game reserves during open seasons.
North Carolina Yes
North Dakota Yes
Northern Mariana Islands Yes Open carry is prohibited.
Ohio Yes Ohio is an open carry state. Open carry is not permitted in vehicles without a Concealed Handgun License. Local firearm laws were preempted in 2007.[27][28]
Oklahoma Yes Residents of permitless carry states may openly carry without a license with a valid ID from their home state.
Oregon Yes Some more populous locations (Portland, Salem, etc.) have ordinances restricting open carry. Persons with concealed carry licenses are exempt from local open carry restrictions.
Pennsylvania Yes License to carry needed to open carry in a motor vehicle[29] or in a city of the first class (pop over 1,000,000—currently only Philadelphia falls into this category) [30]
Puerto Rico Yes[31]
Rhode Island Yes Open carry of handguns permitted with permit issued by the Attorney General's Office. No permit required to carry long guns.
South Carolina Yes
South Dakota Yes
Tennessee Yes
Texas Yes As of 1 January 2016, licensed open carry of handguns (only if carried in a belt or shoulder holster) is legal.[32] Open carry of long guns or antique pistols without a permit was already legal.
U.S. Virgin Islands Yes Open carry is prohibited.
Utah Yes A license is required to openly carry a loaded firearm (e.g., a live round of ammunition in the firing chamber of the weapon). No license necessary when the weapon is unloaded and exposed.
Vermont Yes
Virginia Yes Open carry is generally allowed without a permit for people 18 years of age and older. The following cities and counties have exceptions that disallow the open carry of "assault weapons" (any firearm that is equipped with a magazine that will hold more than 20 rounds of ammunition or is designed by the manufacturer to accommodate a silencer or equipped with a folding stock) or shotguns equipped with a magazine that holds more than 7 rounds: the Cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, and Virginia Beach and in the Counties of Arlington, Fairfax, Henrico, Loudoun, and Prince William. These restrictions do not apply to valid concealed carry permit holders. Stated differently, you may open carry an assault weapon/shotgun with more than 7 rounds with a permit in the aforementioned locations, but do not need a permit to do so in any other locality in Virginia.
Washington[33] Yes Open carry is legal without a license, but to carry a handgun loaded in a vehicle one needs a concealed pistol license (CPL).[34] Carry of loaded rifles and shotguns in vehicles is also restricted, per RCW 77.15.460[35]
West Virginia Yes
Wisconsin Yes Section 32 of 2011 Wisconsin Act 35 (codified as Wis. Stat. 167.31(2)(b), removed the vehicle carry restriction for handguns. However, what constitutes open carry is defined by case law. If one does not possess a Wisconsin concealed weapons license (or a qualifying out of state license), ensuring that the weapon is visible from the outside is essential.[38]
Wyoming[14] Yes

Constitutional implications

Open carry has never been ruled out as a right under the Second Amendment of the U.S. Constitution by any court. In the majority opinion in the case of District of Columbia v. Heller (2008), Justice Antonin Scalia wrote concerning the entirety of the elements of the Second Amendment; "We find that they guarantee the individual right to possess and carry weapons in case of confrontation." However, Scalia continued, "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."[39]

Forty five states' constitutions recognize and secure the right to keep and bear arms in some form, and none of those prohibit the open carrying of firearms. Five state constitutions provide that the state legislature may regulate the manner of carrying or bearing arms, and advocates argue that none rule out open carry specifically. Nine states' constitutions indicate that the concealed carrying of firearms may be regulated and/or prohibited by the state legislature.[40] Open carry advocates argue that, by exclusion, open carrying of arms may not be legislatively controlled in these states. But this is not settled law.

Section 1.7 [41] of Kentucky's state constitution only empowers the state to enact laws prohibiting "concealed carry".

In 2015, former Florida congressman Allen West opined, regarding the 2015 Supreme Court decision in Obergefell v. Hodges, "Using the same 'due process clause' argument as the Supreme Court just applied to gay marriage, my concealed carry permit must now be recognized as valid in all 50 states and the District of Columbia.“[42] This opinion echoes reasoning contained in an Amicus curiae brief in Obergefell.[43]

Demonstrations and events

Diversity in state laws

State laws on open carry vary widely. Five states, the Territory of the U.S. Virgin Islands and the District of Columbia fully prohibit the open carry of handguns. On the other side, twenty-five states permit open carry of a handgun without requiring the citizen to apply for any permit or license. Fifteen states require some form of permit (often the same permit as allows a person to carry concealed), and the remaining five states, though not prohibiting the practice in general, do not preempt local laws or law enforcement policies, and/or have significant restrictions on the practice, such as prohibiting it within the boundaries of an incorporated urban area. Illinois allows open carry on private property only.[68]

On October 11, 2011, California Governor Jerry Brown signed into law that it would be a "misdemeanor to openly carry an exposed and unloaded handgun in public or in a vehicle." This does not apply to the open carry of rifles or long guns or persons in rural areas where permitted by ordinance.

On November 1, 2011, Wisconsin explicitly acknowledged the legality of open carry by amending its disorderly conduct statute (Wis. Stat. 947.01). A new subsection 2 states "Unless other facts and circumstances that indicate a criminal or malicious intent on the part of the person apply, a person is not in violation of, and may not be charged with a violation of, this section for loading, carrying, or going armed with a firearm, without regard to whether the firearm is loaded or is concealed or openly carried."

On May 15, 2012, Oklahoma Governor Mary Fallin signed Senate Bill 1733, the Oklahoma Self Defense Act, which will allow people with Oklahoma concealed weapons permits to open carry if they so choose. The law took effect in November, 2012. "Under the measure, businesses may continue to prohibit firearms to be carried on their premises. SB 1733 prohibits carrying firearms on properties owned or leased by the city, state or federal government, at corrections facilities, in schools or college campuses, liquor stores and at sports arenas during sporting events."[69]

Federal Gun Free School Zones Act

The Federal Gun Free School Zones Act limits where a person may legally carry a firearm by generally prohibiting carry within 1000 ft of the property line of any K-12 school in the nation, with private property excluded.[70] A state-issued permit to carry may exempt a person from the restriction depending on the laws of the state, and most issuing states qualify for the exception. However, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives, the exception in federal law is inapplicable to permit holders outside the state that physically issued their permit, and it does does not exempt people with out-of-state permits even if the permit is recognized by state reciprocity agreements. BATFE letter explaining reciprocity of CCW permit holders and how it applies to Gun-Free School Zones.

In a 1995 Supreme Court case, the Act was declared unconstitutional: "The Court today properly concludes that the Commerce Clause does not grant Congress the authority to prohibit gun possession within 1,000 feet of a school, as it attempted to do in the Gun-Free School Zones Act of 1990, Pub. L. 101-647, 104 Stat. 4844." [71]

The law was reenacted in the slightly different form, in 1996.[72]

See also

References

  1. "Gun supporters cheer Starbucks policy". Associated Press. February 28, 2010. Retrieved 2013-03-05. Even in some "open carry" states, businesses are allowed to ban guns in their stores. And some have, creating political confrontations with gun owners. But Starbucks, the largest chain targeted, has refused to take the bait, saying in a statement this month that it follows state and local laws and has its own safety measures in its stores.
  2. O'Connell, Vanessa; Jargon, Julie (2010-03-04). "Starbucks, Other Retailers Dragged Into Gun-Control Dispute - WSJ.com". The Wall Street Journal. Retrieved 2010-03-11. The "open carry" movement, in which gun owners carry unconcealed handguns as they go about their everyday business, is loosely organized around the country but has been gaining traction in recent months. Gun-control advocates have been pushing to quash the movement, including by petitioning the Starbucks coffee chain to ban guns on its premises. Anti-gun activists gathered at the original Starbucks in Seattle to push retailers like the coffee chain to ban customers from openly carrying guns, WSJ's Nick Wingfield reports. Businesses have the final say on their property. But the ones that don't opt to ban guns—such as Starbucks—have become parade grounds of sorts for open-carry advocates.
  3. "Gun-rights activists to descend on downtown Palo Alto - San Jose Mercury News". Retrieved 2010-03-11. Today, a group of gun-rights advocates will exercise their Second Amendment rights by congregating in the plaza with unloaded firearms in plain view. Bay Area members of the national "open carry" movement said they chose the city in part because it is one of the few in the state that has a municipal ban on gun possession. Don't expect any '60s-style confrontations with authorities, however. Palo Alto officials said Friday they will not attempt to enforce the city's ordinance, since it is superseded by state law allowing people to carry guns openly as long as they're not loaded. "We're not going to try to fight state law on this," said Palo Alto police Lt. Sandra Brown. "We're just going to let it happen."
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