Open carry is a term used to describe the act of openly carrying a firearm or a gun in public. Thus, open carry refers to a situation whereby gun owners “carry unconcealed firearms while they go about their daily business” (Hsiech and Pugh 183). Open carry has been opposed by various interest groups such as Brady Campaign in order to reduce cases of violence among citizens (Miller, Azrael, & Hernenway, 2003, pp. 1988-1993). However, proponents of open carry argue that citizens need to carry guns for their security. These two opposing views on the significance of open carry have led to the debate on whether open carry should be legalized in California or not. Does the constitution or law permit open carry in California?
Currently, there is no part or section of the constitution of California that specifically forbids carrying an unloaded gun in plain sight (Brendan, Poral, & Wiebe, 2010, pp. 674-679). However, some sections of California’s constitution restrict possession of unloaded guns in specific areas. For instance, California’s gun laws prohibit carrying or using guns in places such as state parks and schools. The legality of open carry is bound to change as from January 2012. This is because Governor Brown signed AB144 into law. The AB144 shall prohibit open Carry in various parts of California. This memorandum will discuss three aspects of open carry: (1) the current legal status of open carry in California (2) persons with the right to open carry (3) the laws or code (rights) that allows open carry in California. This memorandum has been prepared for, and addressed to the National Rifle Association; herein referred to as the client.
The current Legal Status of Open Carry
The gun laws in California generally allow citizens to possess and carry an unloaded gun in the public without obtaining a license from the government (Hemenway & Miller, 2008, pp. 989-991). However, the person carrying the gun must ensure that his or her firearm is in plain-sight. The application of the laws that guide open carry is restricted to non-prohibited areas. This implies that carrying an unloaded gun in a prohibited area is an offence. The areas designated as ‘prohibited’ include state buildings, post offices, as well as, schools. Majority of citizens and even some law enforcement officers are not well versed with the open carry laws in California. This has led to several cases of harassment and arrests of citizens who are legally carrying their guns in “accordance with the Second Amendment right to bear arms” (Hepbum, Miller, & Azrael, 2007, pp. 105-115).
Currently, there is no law or legislation that particularly permits the practice of carrying a gun in plain sight. The legitimacy of this practice is, thus, based on the principle that there is no existing law that prohibits it (Hepbum, Miller, & Azrael, 2007, pp. 105-115). The proponents of open carry rely on the following philosophies to justify the practice of open carry. Firstly, law abiding owners of firearms should be allowed to exercise their right to bear firearms according to the Second Amendment (Hsiech & Pugh, 2006, pp. 182-202). Secondly, open carry is an effective method of avoiding being a victim of crime, especially violent crime. This in turn enables the person carrying his gun in pain sight to avoid being forced to use his or her firearm. Finally, open carry tends to be more comfortable compared to concealed carry of guns.
The laws that permit open carry are not applicable in the case of assault weapons. This is based on the fact that Penal Code 12280 of California’s laws prohibits possession of assault weapons (Kates & Mauser, 2008, pp. 650-685). As long as a person is not legally prohibited from possessing or acquiring a firearm, he or she can openly carry short-guns, rifles, as well as, hand-guns. Unloaded magazines can either be carried in a holster or in the gun. This helps the owner to avoid having his partially concealed magazine being considered an illegally concealed firearm. The open carry laws in California are not only applicable to “guns carried on your person, but also guns that you may posses in your car or on a motorcycle” (Kates & Mauser, 2008, pp. 650-685). However, if the person carrying the gun has to pass through or enter a school zone, the weapon must be placed in a lockable case in accordance to Penal Code 12026.1.
Relevance of AB 144
AB144 will become effective as from 1st of January 2012. According to this law, open carry will be considered a misdemeanor in California (Bryan, 2011). Thus, carrying an unconcealed and unloaded gun in any public area or vehicles will be illegal. Those who violate this restriction will be jailed for up to one year or pay a fine of 1,000 dollars. However, the bill exempts sporting games such as hunting and shooting which involve the use of firearms. The bill is also not applicable to persons with permits which allow concealed carry (Bryan, 2011). The enactment of the AB144 bill was motivated by the need to improve security in California by regulating possession and use of firearms by the public. However, some republicans and gun activists are opposed to AB144 since it infringes the citizen’s right to bear arms according to the second amendment (Bryan, 2011). They also argue that open carry is likely to improve the security of citizens through self defense. Since AB144 will become effective from January 2012, it does not affect the current legal status of open carry in California.
Persons allowed to carry guns
While firearms are meant to improve the security of citizens through self defense, such firearms can also be a threat to national security. The firearms can be a threat to security if they are misused by those who possess them (Kopel, 2006, pp. 1-50). Consequently, only non-prohibited persons are allowed to possess or carry guns. Prohibited persons are individuals who are not allowed, by law, to carry any firearm. Such persons include criminals, drug addicts, felons and those who have been found guilty of a misdemeanor such as domestic violence. Persons falling under this category are “prohibited from owning, possessing, purchasing, or receiving firearms under Penal Code 12021 PC of California’s felon with a firearm law” (Kopel, 2006, pp. 1-50). The citizens who already own guns are expected to relinquish their firearms upon being convicted of any crime. Illegal immigrants and non-US citizens are also not allowed to carry firearms. In order to enjoy the right of keeping and using a firearm, an individual should be at least eighteen years of age. Persons who are known to be suffering from mental disorder, and are thus, a threat to themselves, as well as, others are also not allowed to openly carrry firearms.
The Rights of Firearm Owners (laws)
Since California lacks a specific law that permits open carry, the rights of citizens to openly carry guns in California is based on the provision of the Second Amendment of the constitution of the United States of America. The Second Amendment states that “a well regulated militia being necessary to the security of the Free State; the right of the people to keep and bear arms shall not be infringed” (Miller, Azrael, & Hernenway, 2003, pp. 1988-1993). This means that the citizens have the right to posses and use guns in US including California. However, such rights are only recognized if the firearms are used for the purpose of ensuring security of the country and its citizens (Hepbum, Miller, & Azrael, 2007, pp. 105-115). Thus, criminals are not allowed to keep or use guns. As stated earlier, the right to openly carry a gun is restricted to specific areas. Thus, the following penal codes prohibit open carry in various places.
A.Carrying Guns in Schools
Penal code 626.9 of California’s laws prohibits citizens from carrying any firearm within a K-12 school or any place within 1000 feet from such schools (Miller, Azrael, & Hernenway, 2003, pp. 1988-1993). An individual can only be exempted from this restriction if he or she has a state-issued permit that permits carrying of guns within school compounds.
B.National and State Parks
Carrying firearms in state parks is prohibited under CCR Title 14, Div.3, Chap. 1, 4313 (a). Individuals who are transporting firearms through parks must inform the gate attendants of their possession of guns (Brendan, Poral, & Wiebe, 2010, pp. 674-679). For firearms to be allowed into parks, they must be inoperable. This means that the firearms must be unloaded, cased, and out of sight (Brendan, Poral, & Wiebe, 2010, pp. 675-679). Penal Code 36 C.F.R. 2.4 (a) prohibits open carry in post offices.
Open carry is the act of carrying a firearm or a gun in plain sight, and in a public area. Currently, open carry is allowed in California. However, there is no particular law under the California’s penal code that authorizes carrying of unloaded guns in plain sight, especially in public areas. The legality of open carry in California is, thus, based on the fact that there is no law or legislation that prohibits it. The Second Amendment of 1791 gives citizens the right to keep and carry firearms (Brendan, Poral, & Wiebe, 2010, pp. 674-679). This amendment is used by gun activist and owners of firearms to justify the legality of open carry. Besides, they cite benefits of open carry such as self defense in the event of a violent crime (Hepbum, Miller and Azrael 110). Only non-prohibited persons are allowed to carry guns in California. Besides, firearms can only be carried or used in non-prohibited areas. The legal status of open carry in California will change as from January 2012, when AB144 will become effective. Under AB144, open carry will be considered a misdemeanor that is punishable with a jail term of up to one year or a fine of one thousand dollars. Open carry is regulated in order to ensure accountability and responsible use of firearms. To put it in a nutshell, open carry is currently legal in California. However, it will become illegal once AB144 takes effect.