“Open carry, therefore, is the right,” says Mike Stollenwerk, co-founder of OpenCarry.org, adding that “concealed carry is a privilege which can be banned or sharply regulated by the sovereign states.”
The Supreme Court in Marbury v. Madison, 5 US 137, 177. (1803) stated: “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.” And, in their closing the Marbury court, at page 179, stated: “Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.”
The Supreme Court in United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed 588 (1876) declared that the right of “bearing arms for a lawful purpose.” was not granted by the Constitution. The understanding was that it was in existence before the Constitution.
This was clarified and confirmed in 2008, when the United States Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 592, 171 L.Ed 2d 637, 128 S.Ct. 2783 (2008) declared “we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment.” The Court then cited Cruikshank as part of its historical analysis. Thus, Heller held that the right to bear arms for a lawful purpose was secured by the U.S. Constitution.
More importantly, Heller did not limit the right to bear arms. It specifically stated, “Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed,” id. The Court reiterated at page 613, “Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers.”
Now that the USSC has declared the Second Amendment applies to the states (McDonald v. Chicago, 561 U.S. 742 (2010)) they too can’t regulate the keeping and bearing of arms in case of confrontation.
Additionally, the Supreme Court in Caetano v. Massachusetts, 577 U. S. ____ (2016) has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” and that this “Second Amendment right is fully applicable to the States.”
Eighteen states agree that the Feds and the States have no authority to regulate the bearing of arms, period.The Second Amendment guarantees “the individual right … to carry weapons in case of confrontation”—that is, to “‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’” District of Columbia v. Heller, 554 U.S. 570, 584, 592 (2008).
I don't disagree. That is why Clarence Thomas took the Supreme Court justices to task in Silvester v. Becerra, 583 U.S. ___(2018).Color - I wish the 18 states "Good luck!" as I think they will need it in this litigious environment. No longer is it enough to have precedents that favor your side when it can be blown out of the water by "activist" jurists. If more states join in (unlikely at this time), our chances would improve.
Per the article:
That is what I thought until I reread Heller for a 1983 lawsuit I'm involved in. When I showed my attorney what I found it blew his mind. As I posted before.
On January 12, 2018, in the case of VIRGINIA DUNCAN, ET AL., Plaintiffs–Appellees, v. XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, a BRIEF OF EIGHTEEN STATES AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES was filed. In that brief the eighteen states made clear that:
Eighteen states agree that the Feds and the States have no authority to regulate the bearing of arms, period.
Absolutely OUTSTANDING collection of home run cases.
I also absolutely agree with you that our right to keep and bear arms has absolutely nothing to do with the mode of carry. While I understand Mike's affinity for open carry, I see zero Constitutional preference one way or the other. Furthermore absent such preference, and in light of numerous treatises on the issue by our Founding Fathers, it's only logical that while open carry was the normative mode of carry of the day due to the prevalence of long guns, it's entirely conceivable as well as reasonable that pistols were carried in waist holsters secured by one's belt and covered with one's coat to keep the powder dry i.e. they were concealed. Taken together, our Second Amendment clearly protects our right to keep (own/possess) and bear (carry) arms regardless of our mode of carry.