ii. The open carrying of unloaded handguns does not satisfy
the second amendment interest in self-defense.
there is no need to fully recount the argument that constitutionality of concealed carry
restrictions depends upon whether the right to carry a gun is otherwise respected. The case upon
which defendants most heavily rely, peruta v. County of san diego, 2010 u.s. Dist. Lexis
130878 (s.d. Cal. Dec. 10, 2010), held so directly:
[i]n its order denying defendant’s motion to dismiss, this court emphasized that not all
concealed weapons bans are presumptively lawful. Heller and the 19th-century cases it
relied upon instruct that concealed weapons restrictions cannot be viewed in isolation;
they must be viewed in the context of the government’s overall scheme.
Peruta, at *18 (emphasis in original).
Defendants nonetheless aver that plaintiffs have no second amendment need for a permit
to carry a handgun because “[n]othing . . . Precludes a person openly carrying an unloaded
weapon with ammunition close at hand from lawfully loading it when faced with an emergency
situation to act in self-defense or the defense of others.” def. Br. At 12-13.
respectfully, the peruta court seriously erred in accepting this rationale. The open
carrying of an unloaded handgun is itself a dangerous practice. It is an open invitation to
criminals to rob an individual of his or her unloaded and thus indefensible handgun. Nor does it
seriously afford an individual time to react to a sudden criminal attack. The right to bear arms is,
after all, the right to be “armed and ready for offensive or defensive action in a case of conflict
with another person.” heller, 128 s. Ct. At 2793 (citation omitted) (emphasis added). An
individual carrying an unloaded gun is neither armed, nor ready for defensive action.
Peruta misread california law, which distinguishes the fundamental character of loaded
and unloaded guns. A person is only considered “armed” if carrying a functional handgun. See,
e.g. Cal. Penal code § 12023(a) (“[e]very person who carries a loaded firearm with the intent to
commit a felony is guilty of armed criminal action”) (emphasis added). And in heller, the
supreme court struck down a requirement that firearms in the home be rendered inoperable, as
that “makes it impossible for citizens to use [firearms] for the core lawful purpose of
self-defense.” heller, 128 s. Ct. At 2818.
while in theory, the california law allows for some exceptions if the person is practically under attack, defendants do not cite the law’s definition of these circumstances—“the brief
interval before and after the local law enforcement agency, when reasonably possible, has been
notified of the danger and before the arrival of its assistance.” cal. Penal code § 12031(j)(1).
This hardly qualifies as permission to be “armed and ready” for defensive action.
Criminal attacks are frequently sudden, and by their nature impose a great deal of stress and
difficulty on their victims. Violent criminals are not so chivalrous as to afford their prey time to
load their firearms. Defendants’ employees do not carry unloaded firearms for a reason. As
heller instructs, “[a] statute which, under the pretence of regulating, amounts to a destruction of
the right, or which requires arms to be so borne as to render them wholly useless for the purpose
of defence, would be clearly unconstitutional.” heller, 128 s. Ct. At 2818 (quoting state v. Reid,
1 ala. 612, 616-17 (1840)).
But plaintiffs do not claim that simply because penal code § 12031 requires that openlycarried
firearms be unloaded, that it must be unconstitutional. Regardless of whatever the peruta
plaintiffs asserted, precedent clearly allows the state to ban the open carrying of firearms entirely
if it so chooses, so long as it does not then ban concealed carrying as well. Section 12031 would
only be unconstitutional if state law forbade the concealed carrying of arms, and this the law does
not do. Rather, the law, permissibly, bans open carrying of functional firearms for all practical
intents and purposes, and subjects the concealed carrying of firearms to a licensing scheme. The
only alleged defect in that licensing scheme is that it affords defendants unbridled discretion.
In the absence of a licensing scheme for the concealed carry of handguns, plaintiffs would
have to challenge the constitutionality of penal code § 12031, because the law would then
simply ban, without more, the practical carrying of handguns. And if california law allowed the
open carrying of loaded firearms, plaintiffs would have greater difficulty challenging the
concealed carrying system. But that is not the state of the law.