Open and Concealed Carry are Protected by the Second Amendment

Constitutional We the People
We the People have the right to keep and bear arms. It says it right here on this Constitution.

Arizona -( The natural right to bear arms includes the right to carry them concealed as well as openly. Both types of carry were practiced at the time of the ratification of the Bill of Rights. Flintlock “muff pistols” were widely available before 1791. Daggers, dirks and other assorted blades were commonly carried concealed. Sword canes conceal the blade inside of the cane, and are considered concealed weapons. They were commonly available.  They became popular, in part, to avoid any social reproach against the carry of swords, anticipating the condemnation of open carry today.

Historic examples of choices for concealed carry.
Historic examples of choices for concealed carry.

The Second Amendment does not differentiate between concealed and openly carried arms.  Such differentiation was not discussed during the debates about the Second Amendment.  It was decades after the Bill of Rights was ratified that concealed carry was questioned. Arms technology had not changed significantly.

Concealed weapons had and have military purposes. General Gage, the British Officer in charge of occupied Boston, had his officers conceal their sidearms when patrolling to prevent Paul Revere's ride. From William Diamond's Drum page 94:

And finally, unbeknown to him. Gage had that afternoon posted mounted officers, with their sidearms concealed as though they were on pleasure jaunts, along the Cambridge roads, just in case messengers should try to give out alarms that night.

There were no colonial statutes that separated the carrying of concealed weapons from the open carrying of weapons.

The Kentucky legislature passed a statute forbidding concealed arms in 1813. It was challenged in court.

The statute was found unconstitutional in Bliss v. Commonwealth of Kentucky, in the state Supreme Court. It was 1822, three decades after the Second Amendment was ratified.  Any restriction on bearing arms was contrary to “the right of the citizens to bear arms in defense of themselves and the state“, and was therefore void.

The court reasoned that any diminution of the right that existed when the Constitutional protection was adopted, was an infringement of the right, and was therefore unconstitutional. The logic is impeccable.

In 1833, the Supreme Court ruled that the Bill of Rights, including the Second Amendment, did not apply to the states.

In 1833, the Indiana Supreme Court ruled that concealed carry could be banned for people who were not travelers.

Five other state courts, with different state constitutions,  (Alabama, Tennessee, Arkansas, Georgia, and Louisiana), ruled their legislatures could ban concealed carry  from 1833 to 1850, to varying degrees.

In Kentucky, a Constitutional amendment was deemed necessary. The constitutional amendment to allow the legislature to regulate the concealed carry of weapons passed in 1849, as part of a constitutional convention. In 1850, the wording in bold was added:

  “That the rights of the citizens to bear arms in defense of themselves and the State shall not be questioned; but the General Assembly may pass laws to prevent persons from carrying concealed arms.”

All but Indiana were slave states.  Prohibiting the carry of concealed weapons is particularly important to keeping suspect minorities disarmed.  If the weapons are concealed, it is much harder to enforce legal or extralegal disarmament techniques, such as selective enforcement under color of law.

In 1859,  The Texas Supreme Court, in Cockrum v. state, held that “The right of a citizen to bear arms, in defense of himself or the State, is absolute.”  The court cited both the Second Amendment and the then current Texas Constitution. The case held that if inexpensive weapons were prohibited, the right of self defense would be chilled for poor people.

In 1868 the Fourteenth Amendment was passed to assure, in part, that the Second Amendment would be enforced to insure that freed slaves could keep and bear arms. The former slave states found ways to evade the requirement. In 1873, the Fourteenth Amendment's enforcement of the Bill of Rights against state encroachment was nullified by the Supreme Court.

In 1903, the Vermont Supreme Court, in State v. Rosenthal, found that an ordinance requiring a permit to carry a concealed pistol “..repugnant to the Constitution and laws of the state,”.

Federal laws have never been passed against the carry of concealed weapons.

In 2008 the Heller decision made clear what it meant to bear arms. Scalia quoted Justice Ginsburg's writing in a previous case.  From

Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘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.’ ”

“ the clothing or in a pocket” is carrying concealed.

Justice Scalia concluded that laws banning the concealed carry of arms were constitutional, solely because such laws were long standing in a number of states. Such laws were not upheld before the 1830's, 40 years after the Bill of Rights was ratified.

Laws against the concealed carry of weapons are vestiges of laws designed to keep slaves and free blacks disarmed.

In 2010, the Supreme Court held the Second Amendment is incorporated against the States by the Fourteenth Amendment, finally doing what the Court should have done in 1873.

Adam Winkler, an Constitutional scholar at UCLA, has written that allowing only open carry may be the best way to discourage bearing arms in general.  He made the case this might be the most effective way for the California legislature to chill the exercise of the Second Amendment.

Vermont has never required a permit for open or concealed carry. Twelve states have reformed their laws to allow the carrying of weapons, concealed or openly, without permission from the government, since 2003. They call it Constitutional Carry.

Both open carry and concealed carry are protected by the Second Amendment. Restricting the bearing of arms to either open carry or  concealed carry is a clear infringement of that right to bear arms.

©2018 by Dean Weingarten: Permission to share is granted when this notice is included.

Link to Gun Watch

About Dean Weingarten:Dean Weingarten

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

  • 27 thoughts on “Open and Concealed Carry are Protected by the Second Amendment

    1. I will always advocate for CONCEALED carry, and NEVER for OPEN carry, for one simple reason:
      If you happen to be in a store, restaurent, school, etc., and someone comes in armed and ready to commit an act to harm or kill anyone/everyone, WHO do you think is going to be the first to die?
      Yup, it IS the citizen who is open carrying.
      This is a basic tenant that is taught by the Military, and many, if not all, shooter-type video games: The guy with the gun is the first one you need to shoot!
      If you have a handgun that nobody can see, you are at a complete advantage over an evil doer, and just may have a chance to stop the thug before things go south.
      No, unless I am hunting with a ahndgun, I will never open carry, so I might be the guy who survives…

      1. First of all, your argument for concealed carry hinges on the assumption that you will be a bystander and not the intended target, thus relying on the element of surprise rather than preparing for being surprised yourself. The fact is that the probability of you being the target when you are alone is exponentially higher than if a criminal is walking through a convenience store shooting all the armed shoppers first before he robs the store. The myth that if you open carry a bad guy is going to shoot you first is just that, a myth.

        Which brings me to my second point. Show me where open carriers are getting shot first as you claim.

      2. Badger, that is total BS. There are many accounts where an OC citizen was not the first attacked and was the one to stop the criminal act. Criminals are not typically trained military members and often are not the brightest bulbs. We do not OC mainly because we don’t want to worry the sheep. In certain places OC is not wise, such as crowds, but we tend to avoid those places to begin with. CC can be better, but explain why LE OC. Is it because CC is safer?

        I recall one story where a young woman was attacked by a perp after leaving the gas station convenience store at night. The perp failed to notice she had a sidearm and paid dearly for his mistake. She survived uninjured, he didn’t.

        1. Many people do not see an openly carried handgun. A good reason to avoid the flashy bling holster and belt for everyday carry. Save the hand tooled, silver mounted outfit for gun shows and parades.
          A lone robber or small gang counts the people in the liquor store and probably delays until the crowd thins. As was said, some robbers can’t tell the difference between a car mechanics uniform and a security guard. They are just as likely to shoot the tan or blue pressed clothes or wait until the odds change.
          But the lone gun carrier may be targeted for their wallet and examined close enough that an open carrier’s gun can become the target of the theft. Since you can’t legally draw your gun just because you see some young men milling around. Those young men might be Boy Scouts or they might be a street gang and they can get close and simply take your gun, preventing your even drawing.
          This has happened here in Wichita when a guy walking his dog was mugged and his gun taken.
          Cops are NEVER totally alone and they pretty much all use Threat Level holsters.
          There is strength in numbers and weakness in solitude.

    2. Arizona has constitutional carry, however unless you have a concealed carry permit the 1000ft gun free school zone rule applies, making it nearly impossible to carry in most cities esp Phoenix, as there is almost no part of the residential areas that are not within 1000 ft of a school. I lived 2 block from a high school and less than 1/2 from a grade school, meaning as soon as I left my property, if not my door, I would be in violation.

      1. The GFSZ 1,000 foot radius from the school property line was chosen because it made most unlicensed carry a federal felony. The way the law, Title 16§922(q), is written the license must be issued by the state where the school is located. So a Kansas CCHL does not provide an exclusion except in Kansas. An Arizona CCW only protect from the GFSZ in Arizona.
        It doesn’t matter if your state and others states have formal reciprocity.
        HR 38, National Reciprocity, which has passed the House and may die in the Senate makes a license issued by any state a valid exception to the GFSZ.

        1. Correct, and the reason it’s going to die in the Senate is somewhat convoluted but not really difficult to understand once you realize that all players were in on it.

          Take the premise that neither the President, the House, Senate or NRA wanted this to ultimately pass. How to do it without having a revolution among gun owners? The House handily passes the Bill whereupon the President has been proclaiming since pre-election “if you send it to me I’ll sign it”. The NRA says “look what we’ve done, it’s on the move guys, we have to get it through the Senate, we need MORE MONEY”, all the while knowing that the Senate, under McConnell, will never let it come to a vote and will use the simple tactic of “gosh, I’d love to but there are so many pressing matters like tax and healthcare reform, let us get through them first”. All the while knowing that, with the midterms approaching no one wants to vote on this.

          And THEN comes Florida, (he would have done it FL or not, this was just happenstance) the President has the perfect excuse to show his true colors, not as anti-gun but simply as a businessman whose priority is anything but the Second Amendment. And so he does when he proclaims “Reciprocity is dead”. The NRA then has hurried consultations all while pleading for MORE MONEY, but, is the NRA poised to file suit against Donald J Trump if he implements an Executive Order against Bump Fire Stocks? No they are not, it’s two outside RKBA organizations. Ask yourselves why? And if the answer isn’t apparent you’ve been drinking too much Koolaid.

    3. Exactly! “Both open carry and concealed carry are protected by the Second Amendment.” Not only is our fundamental Right further protected not only from violations by the Second Amendment, BUT, protected from any action that INFRINGES upon our fundamental freedoms to exercise our natural inherent individual unalienable(inseparable from our human existence) fundamental Right to the self defense of our other Rights, our Right to life, liberty, and property!

      It is just to bad that our tyrannical dictators, legislatures and congress people, state and Federal, have not adhered to that Constitutional law. They have grossly and blatantly not just infringed upon it, but, violated it, usurping our freedoms for their own agendas. If they keep this up we will either fall completely into the subservient status of slaves to our own governments OR, if it becomes insufferable, there will be a deep cry coming from the bowls of our country for our second “Bowling Green at Lexington” and real men professing another “Patrick Henry moment”.
      Great article Dean!

    4. @Roy D: I am philosophically opposed to the death penalty only because there is no return from it and innocent people have been executed. That, and under the current system it has been proven to cost more to execute someone than to imprison them for life, although that is a secondary consideration for me.

      1. Only because of the appeals process is it more expensive. Yes, innocent people have been executed, or imprisoned for long periods, however, it took a jury of 12 to be in agreement. It’s not always fair, I agree, but life in general isn’t fair. The system isn’t perfect, but it beats all the other systems. At least we have an appeals process.

    5. All gun laws are unconstitutional. The only law I agree with is that violent felons should not possess firearms.

      1. But wait, do you agree or not that once you have done your prison time you have been punished to the fullest extent of the law or do you believe you should be punished for the rest of your life? If you take away a person’s Rights and don’t restore them after they’ve served their sentence, why not just keep them IN prison?

        1. Vans, fully agree. If the person is too dangerous to be allowed back into society, we should not be freeing the wolves.

          Obviously, based on the fact that convicted felons do illegally obtain, possess, and use firearms, the law not “allowing” them to possess them doesn’t prevent them from doing so. It is only used as another bargaining chip for sentencing after they have been caught committing more crimes.

        2. My thoughts on crime and punishment, having been closely involved in it for over twenty two years, is this:
          If someone commits a crime which the victim of said crime could have legitimately used deadly force to prevent or stop said commission, then the person who committed that crime should be sentenced to death and that sentence carried out after one appeal should that appeal fail.
          Not all, but most in my opinion, commit crimes for the same reason people use illegal drugs. That is there is seldom swift, sure, and dire consequences for their actions.

    6. Justice Scalia is always misquoted by the LEFT and that slips into pro-Second Amendment comments.
      Justice Scalia did not uphold or say that long standing gun laws were constitutional. What he said in HELLER was that until the Court actually heard a case on point those laws remain in place and can still be enforced.
      The commentators on the Court make claims and even edit “summaries” of cases and decisions. Case in point… The 1939 MILLER case was NOT DECIDED and the 1934 NFA was not declared to be constitutional. The Court did not decide the case because there was no transcript, evidence or facts to consider because the Arkansas District Court had dismissed the case against MILLER when the prosecution presented the case.
      The SCOTUS said “it was not within judicial notice” meaning there was nothing for the Justices to examine.
      The MILLER case was remanded for the trial which had not happened and it still hasn’t. The Court did not issue an injunction against the 1934 NFA and the government has been pretending for almost 80 years that the law was upheld.

      1. Well put Jim! Of course there’s a lot more, in definitional terms, to Miller than the antis EVER want to get into. The devils always in the details!

        1. Thank you. If you haven’t read it, ORIGINS and DEVELOPMENT of the SECOND AMENDMENT compiled by David E. Young is very mush worth reading.
          The 1982 Senate Report on the Second Amendment is very interesting. It includes both pro and anti testimony as well as conclusions.
          Some interesting items in the HCI/ACLU written testimony was their quotation of the Second Amendment. They quoted thus…
          “A well regulated militia, being necessary to the security of a free state, the right to keep and bear arms, shall not be infringed.” Seems they left something out.
          They also added extra commas [the NRA does too and should change that since the Second Amendment was written and ratified with one comma. In 1959 the new States of Alaska and Hawaii copied the Second Amendment with one comma.
          I like my change, it is much easier to understand.
          A well regulated militia being necessary to the security of a free state ? [Yes, therefore]
          “The right of te people to keep and bear arms shall not be infringed.”

    7. I believe Adam Winkler and other anti-rights people would sorely regret a law requiring OC only. They already wet themselves at the mere idea of someone owning a firearm. Although the most offensive part of OC in California is that the firearm is not allowed to be loaded(?). That defeats the whole point of armed defense.

      I know many CC holders might carry if OC was the only way, but I bet at least some would, especially in certain circumstances. I do while at gun shows representing rights groups, many attendees do also. I also OC at home, my OWB carry is much more comfortable than my IWB when worn all day. And with an untucked shirt, my OWB becomes CC.

      1. “Adam Winkler, an Constitutional scholar at UCLA, has written that allowing only open carry may be the best way to discourage bearing arms in general.”
        How ironic that this professor of indoctrination calls himself a “Constitutional scholar”, yet invents ways to possibly neuter the 2nd Amendment. With that said, he is a fool. If open carry was all that was allowed, you can bet that millions of pro-Constitution patriots including off duty or ex military and law enforcement personnel, would be openly carrying. This would cause such an uproar in the brainwashed left, that I would almost like to see it happen. I wonder how fast the left would try to repeal their own law and beg to go back to how it was?

        1. There is no “… allowing..” to it. Allowing presupposes that some entity has the authority to sanction or deny the bearing of arms. That describes a privilege. That does not describe a Constitutional Civil Right.
          If Adam Winkler used the word allow, then he is wrong or an intentional deceiver.

        2. Many constitutional scholars, including this bozo and another bozo, BHO, study the constitution just to find loopholes and weaknesses.

          When the history and text of the Constitution do not match their wishes and they just teach a few generations of “skulls full of mush” or SFB falsehoods.

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