Is open carry a First Amendment right?

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Hello all, this is my first post here. I am very new to the OC movement, in fact I only really heard about it due to a anti-OC article I read online. One thing that struck me in that, and other similar articles I have read however, is the idea that by practicing OC, adherants are attempting to make a political point. This idea seemed to raise the ire of Anti-OC opponents more than anything else. But it seems to me that the very act of engaging in OC is in fact a political statement and as such should be covered under the First Amendment as well as under the Second. What are your thoughts?

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Welcome to the forum mwm1331.

I would say that you are right. I've thought the same thing.

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Great First Post! Welcome to the forum.

I agree, it's definitely a combination of first and second amendment rights.

Any time you do anything hoping to provoke people to think about something that has been politicized, you are exercising your 1A right...

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Good point, and I'll admit that I had never thought of it in that regard.

Unfortuantely, if we start putting in 1A territory, it could be argued that permit restrictions are constitutional, per the legality of restrictions on other public acts of protest. The Second is the only one that "shall not be infringed".

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mwm1331 wrote:

Hello all, this is my first post here. I am very new to the OC movement, in fact I only really heard about it due to a anti-OC article I read online. One thing that struck me in that, and other similar articles I have read however, is the idea that by practicing OC, adherants are attempting to make a political point. This idea seemed to raise the ire of Anti-OC opponents more than anything else. But it seems to me that the very act of engaging in OC is in fact a political statement and as such should be covered under the First Amendment as well as under the Second. What are your thoughts?

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Ahhhhh. Brother! Kindred spirit!

Yes! I've thought the same thing for a while now.

My attitude is that if burning myAmerican flag is protected speech, openly carrying a gun had goddam better not be a problem.

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Freedom to cause thought
Without causing harm, only
Showing one's values

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Welcome to the board. :celebrate



I don't think it's actually a first amendment right per se, meaning that open carry isn't protected under the first amendment. But I'd agree that it's definitely a way to use your freedom to make statement and get a point across.

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I appreciate the concept but do not agree. OC is not in my opinion a political statement beyond the reality that politics have been used to infringe upon our second amendment rights. OC should never have been anything political. It is a 2A matter plain and simple and shall not be infringed. If it is not infringed, if the 2A is followed as written, there is no political statement to be made about OC because it just is and that is the way it is suppose to be.

To argue that it is applicable under the 1A weakens the very fact that it is not, should not and was not intended to be a political matter. Once we argue that it is we immediately fall into the anti's trap. As long as we assert that it is NOT a 1A matter because the 2A is clear, concise and applicable and there is no cause to politicize the matter becaues the right to OC transcends politics, we remain on solid constitutional grounds without any need to play semantic games with the antis.

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deepdiver wrote:

I appreciate the concept but do not agree. OC is not in my opinion a political statement beyond the reality that politics have been used to infringe upon our second amendment rights. OC should never have been anything political. It is a 2A matter plain and simple and shall not be infringed. If it is not infringed, if the 2A is followed as written, there is no political statement to be made about OC because it just is and that is the way it is suppose to be.

To argue that it is applicable under the 1A weakens the very fact that it is not, should not and was not intended to be a political matter. Once we argue that it is we immediately fall into the anti's trap. As long as we assert that it is NOT a 1A matter because the 2A is clear, concise and applicable and there is no cause to politicize the matter becaues the right to OC transcends politics, we remain on solid constitutional grounds without any need to play semantic games with the antis.

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Very good point.

As Scalia said, certain policy choices are off the table.

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deepdiver wrote:

I appreciate the concept but do not agree. OC is not in my opinion a political statement beyond the reality that politics have been used to infringe upon our second amendment rights. OC should never have been anything political. It is a 2A matter plain and simple and shall not be infringed. If it is not infringed, if the 2A is followed as written, there is no political statement to be made about OC because it just is and that is the way it is suppose to be.

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I agree, in a perfect world this would be so. But we dont live ina perfect world. In the world we live in, the Second Amendemnt is given far less deference than the First. It seems to me, that by arguing that OC is both a First and Second Amendment right, only increases the probability that OC will be recognised as an human right.

To argue that it is applicable under the 1A weakens the very fact that it is not, should not and was not intended to be a political matter. Once we argue that it is we immediately fall into the anti's trap. As long as we assert that it is NOT a 1A matter because the 2A is clear, concise and applicable and there is no cause to politicize the matter becaues the right to OC transcends politics, we remain on solid constitutional grounds without any need to play semantic games with the antis.

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Im not sure I understand your position. Cant OC be both? Cant exercising you rights be a political statement as to the value you place on your right? That is to say, can't OC be recognised as a way of celebrating your 1st A rights by exervising your 2nd A rights?
How does that weaken the argument for OC?
???

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mwm1331 wrote:

deepdiver wrote:

I appreciate the concept but do not agree. OC is not in my opinion a political statement beyond the reality that politics have been used to infringe upon our second amendment rights. OC should never have been anything political. It is a 2A matter plain and simple and shall not be infringed. If it is not infringed, if the 2A is followed as written, there is no political statement to be made about OC because it just is and that is the way it is suppose to be.

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I agree, in a perfect world this would be so. But we dont live ina perfect world. In the world we live in, the Second Amendemnt is given far less deference than the First. It seems to me, that by arguing that OC is both a First and Second Amendment right, only increases the probability that OC will be recognised as an human right.

To argue that it is applicable under the 1A weakens the very fact that it is not, should not and was not intended to be a political matter. Once we argue that it is we immediately fall into the anti's trap. As long as we assert that it is NOT a 1A matter because the 2A is clear, concise and applicable and there is no cause to politicize the matter becaues the right to OC transcends politics, we remain on solid constitutional grounds without any need to play semantic games with the antis.

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Im not sure I understand your position. Cant OC be both? Cant exercising you rights be a political statement as to the value you place on your right? That is to say, can't OC be recognised as a way of celebrating your 1st A rights by exervising your 2nd A rights?
How does that weaken the argument for OC?
???

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mwm1331,

ICCand have on rare occasions OC'd. I doboth because it is my right to do so and that right to bear arms is affirmed by the Second Amendment. The right to bear arms is a fundamental right of every human being. Politicalizing it only waters it down to something lower than what it really is.

I mostly CC by choice mainly because of where I live and work but I believe that OC isno less ofa right.

The problem that we're faced with in this society is the irrational fear of guns perpetuated by people whose only interest is to satisfy their insatiable need for control. Control freaks generally choose the political isle that is most receptive to their platform. OCing shows society that law abiding peaceful citizens can possess and carry firearms responsibly.Nocitizen shouldbe feared, harrassed, detained, arrested, locked up or discriminated against simply becausehe/she possesses a firearm.

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Toymaker, in most states ccing isn't a right, it's a privilege just like driving is and can be taken away if you do some certain things (one exception that I can think of right now is Alaska.) A true right is something that can never be denied or stripped of such as the freedom of speach. I realize I'll most likely encountering some flak for that but that's just my opinion.

On the other hand I wholeheartedly belive that OCing is infact a right of the citizens and is mostly protected under the 2nd amendment firstly, and yes I also think at least in part by the 1st amendment in certain circumstances. The most prominant being in (peaceful) protests. If you live in a state that is denying you your right to OC (such as Texas) I believe you should be able to OC in protest (although most likely with an unloaded weapon to ensure the protest is considered peaceful) to reform the laws which deny you that right.

I recall in an episode of Penn&Teller's Bullsh!t (awesome show btw you should really watch it) some people were exposing their breasts (TopFree IIRC) in protest of indecent exposure laws or something to that effect. Anyway it was explained that just showing your breasts for the hell of it is not protected, but as soon as it is done in protest, it's protected by the first amendment. My point being that if OCing is normally illegal in one state it will be legal to do so in protest because it is in fact (in limited circumstances) protected under the first amendment

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deepdiver wrote:

I appreciate the concept but do not agree. OC is not in my opinion a political statement beyond the reality that politics have been used to infringe upon our second amendment rights. OC should never have been anything political. It is a 2A matter plain and simple and shall not be infringed. If it is not infringed, if the 2A is followed as written, there is no political statement to be made about OC because it just is and that is the way it is suppose to be.

To argue that it is applicable under the 1A weakens the very fact that it is not, should not and was not intended to be a political matter. Once we argue that it is we immediately fall into the anti's trap. As long as we assert that it is NOT a 1A matter because the 2A is clear, concise and applicable and there is no cause to politicize the matter becaues the right to OC transcends politics, we remain on solid constitutional grounds without any need to play semantic games with the antis.

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Interesting thought process, but rights enumerated on the BoR are separate but equal--to use the old Plessey v Ferguson out of context...As diver says, we have the 2nd and that represents the enumerated right. The freedom of speech, coequal, but specifically different, would not apply. Still, if arrested for a peaceful, open carry demonstration, I wonder how far it would go. I'm not aware of any case law ever touching that issue, but would be very interested in reading them, if they exist.

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.

Intersting, indeed.

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mwm1331 wrote:

Hello all, this is my first post here. I am very new to the OC movement, in fact I only really heard about it due to a anti-OC article I read online. One thing that struck me in that, and other similar articles I have read however, is the idea that by practicing OC, adherants are attempting to make a political point. This idea seemed to raise the ire of Anti-OC opponents more than anything else. But it seems to me that the very act of engaging in OC is in fact a political statement and as such should be covered under the First Amendment as well as under the Second. What are your thoughts?

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Keep in mind that while there is a boatload of data which would seem to support the concept of "freedom of expression" under the protections outlined in the First Amendment, in reality, there really is no such thing. Read the amendment. Nowhere is anything remotely stated about freedom of expression. So what does this mean? I know I am going to catch flak about this, but please bare me out for a moment.

The concept of freedom of expression, since it does not fall under the First Amendment, would by covered by the Tenth Amendment. This then makes this "right" more subject to the whim of the people, whereas the right of free speech and the right to keep and bear arms may not be infringed upon or encumbered by the people under any circumstances.

The idea that freedom of expression is a right guaranteed under the First Amendment comes from that insidious and dangerous legal maneuver known as "interpretation". It is through interpretation that all manner of things have found their way into the Bill of Rights and a number of things have been completely dismissed.

Ok, let the flames begin. But I have the text of the Bill of Rights on my side.

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OC is not a "First Amendment right" or "Second Amendment right." It is an inalienable right.

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Ohio Patriot wrote:

OC is not a "First Amendment right" or "Second Amendment right." It is an inalienable right.

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YES!!!!!

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Ohio Patriot wrote:

OC is not a "First Amendment right" or "Second Amendment right." It is an inalienable right.

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Well, yes. Of course.

You understand, we're discussing possible legal angles, potential negotiation points, etc.

But 'sOK. The choir does like listening to the preacher. That's why we stand up front.

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I'd like to argue the 1a aspect as well as the OP but agree with other comments that some court would rule it "unreasonable" speech since some people find handguns "alarming". I think our best bet is to continue working in the remaining states to decriminalize open carry and push 2a-based arguments through the courts to restore our full rights.

I've openly worn an empty holster as a form of protest against the handgun laws here in TX.

Anyone else up for a full-on campaign to protest these illegal laws that restrict our freedoms and leave citizens without CHLs defenseless? (TX has about a six-month backlog on issuing CHLs.)

--Aaron

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akpoff wrote:

I'd like to argue the 1a aspect as well as the OP but agree with other comments that some court would rule it "unreasonable" speech since some people find handguns "alarming". I think our best bet is to continue working in the remaining states to decriminalize open carry and push 2a-based arguments through the courts to restore our full rights.

I've openly worn an empty holster as a form of protest against the handgun laws here in TX.

Anyone else up for a full-on campaign to protest these illegal laws that restrict our freedoms and leave citizens without CHLs defenseless? (TX has about a six-month backlog on issuing CHLs.)

--Aaron

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Already happening, Aaron.

Check the stickied threadson the main page. I think they've got a billboard campaign going.

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Citizen wrote:

akpoff wrote:

I'd like to argue the 1a aspect as well as the OP but agree with other comments that some court would rule it "unreasonable" speech since some people find handguns "alarming". I think our best bet is to continue working in the remaining states to decriminalize open carry and push 2a-based arguments through the courts to restore our full rights.

I've openly worn an empty holster as a form of protest against the handgun laws here in TX.

Anyone else up for a full-on campaign to protest these illegal laws that restrict our freedoms and leave citizens without CHLs defenseless? (TX has about a six-month backlog on issuing CHLs.)

--Aaron

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Already happening, Aaron.

Check the stickied threadson the main page. I think they've got a billboard campaign going.

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I know about the billboard and have donated.

I was referring to open "carry" of an empty holster. An empty holster raises a lot of eyebrows with questions and provides a perfect oportunity to explain what it means and why it's important.