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OC as First Amendment Right

Beretta92FSLady

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First Amendment:


“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.”

Second Amendment:


“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.”


http://www.usconstitution.net/xconst.html


Is open carry not only protected under the Second Amendment, but also the act of open carry itself protected under the First Amendment?


Is there anyone who has viewed cases where open carry was argued as being protected under the First Amendment; either successfully or unsuccessfully?


Thank you.
 
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sudden valley gunner

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Sometime ago I argued this point with Workman in Washington forum. He took a hard stance it is never a 1st amendment issue. He has since changed his tune he wrote that it can be after several showed up to the assault weapon ban in Oly.

Kind of off topic but to me it showed how even nudity can be a first amendment issue, (was one of my arguing points way back when).

A Florida woman was arrested for topless protest, and was released since here being topless was a free speech issue related to her protest.

OC was very attractive to me because it does "speak" about our rights and lets people know and confront issues they may have pushed to the back of their minds about our rights and gun issues. That means it is very much a free speech issue in my mind. And of course there are the countless conversations and "educating moments" that I have been able to have that I wouldn't have if I was concealing.
 

XD40coyote

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What about that little sidebar of freedom of expression? If offensive pornographic art is deemed to be protected under the 1A (nude virgin mary's made of poo, etc), and street theater and performance art are also deemed protected, then does open carry combined with your own artistic endeavors ( as in being part of your art and who you are as an artist), come under that same protection? What if an artist in a state like MD wanted to make an artistic statement, and it included open carry of a real looking replica gun? Or 10 of them!

I won't quite get into the artist OCing real guns in MD, not sure the art world would give ANY legal assistance to such an artist, but fake guns they might.

BTW I had to carry my wooden AK replica in a dark trash bag LOL- didn't want mass panic going on there in Baltimore with on foot transport of part of my art project.
 

WhatTimeIsIt?

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There is a good argument there, that open carry conveys a strong message about a matter of public concern and should be protected as expressive conduct.
 

sudden valley gunner

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There is a good argument there, that open carry conveys a strong message about a matter of public concern and should be protected as expressive conduct.

I could see it going either way, the woman I was thinking of who stood nude in Florida although nudity was illegal, was let go because it was a matter of free speech and her nudity was a protest against the law.
 

Beretta92FSLady

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Why not? Now the question is, could you have an open carry protest in a non-OC state and not be convicted? Is there anyone here willing to go through the motions of taking it to the supreme court?

A man who posts on this site named Dave Workman reminds us to not be a "test case." ...well, unless you are willing to accept that you might be convicted of a crime.

OC as a First Amendment issue has been something I have been thinking about a lot lately. "Life, liberty and the pursuit of happiness" is tied to the Second Amendment, so it makes sense that the First Amendment would be tied into other Amendments. There have been many Constitution Amendments that have been argued along with the Second Amendment...for example: the denial of or federal barring of purchasing a firearm to certain individuals, and how it relates to the Fifth Amendment.
 

sudden valley gunner

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A man who posts on this site named Dave Workman reminds us to not be a "test case." ...well, unless you are willing to accept that you might be convicted of a crime.

OC as a First Amendment issue has been something I have been thinking about a lot lately. "Life, liberty and the pursuit of happiness" is tied to the Second Amendment, so it makes sense that the First Amendment would be tied into other Amendments. There have been many Constitution Amendments that have been argued along with the Second Amendment...for example: the denial of or federal barring of purchasing a firearm to certain individuals, and how it relates to the Fifth Amendment.

Dave isn't a lawyer, he has given lot's of "advice" many of us have ignored with positive results. He also isn't very pro OC.

Although in this particular instance I wouldn't want to be a test case, I would never discourage someone with deep pockets in doing so. I think a competant lawyer could argue that it was 1st amendment right.

Many "test" cases is what have shed light on and done away with outrageous "laws" as unconstitutional. Rosa Parks-McDonald. Unfortunately this seems to be the only process the government will listen to otherwise they will continue to force unconstitutional laws down our throats.
 

Beretta92FSLady

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Dave isn't a lawyer, he has given lot's of "advice" many of us have ignored with positive results. He also isn't very pro OC.

Although in this particular instance I wouldn't want to be a test case, I would never discourage someone with deep pockets in doing so. I think a competant lawyer could argue that it was 1st amendment right.

Many "test" cases is what have shed light on and done away with outrageous "laws" as unconstitutional. Rosa Parks-McDonald. Unfortunately this seems to be the only process the government will listen to otherwise they will continue to force unconstitutional laws down our throats.

I have read(e) Workman's books, and there are moments where I feel he is either not pro-OC or he is apprehensive about OC (he seems to be more apprehensive IMO). I am guessing part of it is his audience. There are pro-Second Amendment groups that do not support OC.

You are right, he is not a lawyer, although, it doesn't take a lawyer to realize that if you are OC'ing during an OC protest in a state that does not permit OC, you are likely going to be a test case.

But you acknowledge that you do not want to be 'the' test case--neither do I.

If a lawyer(s) take the time to formulate a reasoned argument of OC'ing being a First Amendment issue, SCOTUS is always receptive to tackling such issues. I would love to read the transcripts of that case.
 

sudden valley gunner

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To be fair Dave has changed his position that OC can be first amendment issue too. We had argued the point in the past.

I think it was his article after many OC'd to the assault weapon ban hearing in the Capitol.

Yea no argument there that you would be a test case in that scenario, and if I had a lot of money and time and some real good lawyers, I probably would volunteer to be the test case.

Instead I prefer to be the "test" case on smaller levels where I can handle the heat, either by myself or from fine folks like yourself on this forum.
 

SouthernBoy

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Do keep in mind that there is nothing in the First Amendment which protects "freedom of expression". It just isn't in there. So how did this concept come about? Two ways. Through interpretation, which is a bastardization, and/or through the Ninth Amendment;

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Ninth Amendment is the proper and valid path whereas interpretation is an omen for disaster which has been evidenced by the sinister raping of the Second Amendment.
 

Beretta92FSLady

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Do keep in mind that there is nothing in the First Amendment which protects "freedom of expression". It just isn't in there. So how did this concept come about? Two ways. Through interpretation, which is a bastardization, and/or through the Ninth Amendment;

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Ninth Amendment is the proper and valid path whereas interpretation is an omen for disaster which has been evidenced by the sinister raping of the Second Amendment.

For the sake of this thread I will not get into the whole 'interpretation' and the Constitution.

Protest is expression. I would like to know how a person can protest in a way that is not expressive. Or, explain to me how SCOTUS has findings regarding the concept of "expression," and determined what constitutes "expression." Protesting verbally, marching, and carrying signs is a form of expression, or so it seems.

What is the difference between carrying a sign at a pro-Second Amendment protest which reads "Pro- Second Amendment," and OC'ing a sidearm at the same event?
 

sudden valley gunner

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What is the difference between carrying a sign at a pro-Second Amendment protest which reads "Pro- Second Amendment," and OC'ing a sidearm at the same event?

I personally don't see the difference. Except one is also a 2A right.

Like last years 2A rally in Olympia, Dave warned folks not to carry long guns, many did they were making a statement, that simple. But again that's Washington not a place like Maryland or Washington D.C.
 

sudden valley gunner

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Do keep in mind that there is nothing in the First Amendment which protects "freedom of expression". It just isn't in there. So how did this concept come about? Two ways. Through interpretation, which is a bastardization, and/or through the Ninth Amendment;

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Ninth Amendment is the proper and valid path whereas interpretation is an omen for disaster which has been evidenced by the sinister raping of the Second Amendment.

I agree that it isn't up to "interpretation" but we do see if constitutional principles apply to certain scenarios. And to me expression is a form of "free speech" and would be protected.

I am open to hear how your opinion differs, and would like to find out how "expression" isn't a form of free speech.
 

SouthernBoy

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For the sake of this thread I will not get into the whole 'interpretation' and the Constitution.

Protest is expression. I would like to know how a person can protest in a way that is not expressive. Or, explain to me how SCOTUS has findings regarding the concept of "expression," and determined what constitutes "expression." Protesting verbally, marching, and carrying signs is a form of expression, or so it seems.

What is the difference between carrying a sign at a pro-Second Amendment protest which reads "Pro- Second Amendment," and OC'ing a sidearm at the same event?

Did you read my entire post? The First Amendment says nothing about the "freedom of expression". However the Ninth Amendment leaves open freedoms which are the property of the People. Check out the Ninth Amendment.
 

SouthernBoy

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I agree that it isn't up to "interpretation" but we do see if constitutional principles apply to certain scenarios. And to me expression is a form of "free speech" and would be protected.

I am open to hear how your opinion differs, and would like to find out how "expression" isn't a form of free speech.

The word "speech" defines communication which is spoken. As I just mentioned, and posted prior, it is the Ninth Amendment where the concept of "freedom of expression" might be drawn, not the First Amendment. It says:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Basically this amendment is a catch all, a continuation if you will for rights which while not specifically mentioned in the Bill of Rights, are still retained by the People and are therefore not to be tread upon by government.

All I am saying with this is that over the past 219 years, the Bill of Rights has been watered down, twisted, ignored, disdained, and interpreted to the point that most people now just take it for granted that there are things in there that in reality are not, and things that are not in there which somehow are found to be there. For example the phrase, "separation of church and state" appears nowhere in either the Bill of Rights or the Constitution but in the second half of the 20th century we know what happened with that one.

When we allow insidious evil to creep into these hallowed documents and pretend concepts in there don't exist, we might as well just burn the things are have the courage of our convictions to say the Constitution and the Bill of Rights are meaningless and therefore are dead.
 
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