Open Carry Law Redux

I seem to have attracted a lot of attention with my previous post. That’s good! The sentiment is that I got it wrong about open carry laws in the U.S. I didn’t. There are 12 states that allow unrestricted “open carry”: Alabama, Alaska, Montana, Idaho, Wyoming, Nevada, Arizona, New Mexico, South Dakota, Vermont, Kentucky, and Virginia. Another 13 states have a restricted “open carry law” which means you need a permit: Utah, North Dakota, Minnesota, Iowa, Tennessee, Mississippi, Georgia, Indiana, Maryland, New Jersey, Rhode Island, Connecticut, and Massachusetts. The rest of the states do not allow it under any conditions.

The NRA has successfully promoted the myth that the Constitution allows individuals to own guns. That is categorically false. But the Supreme Court has only made a decision of an individual’s right once in U.S. history and it actually sidestepped the issue by deciding against the petitioner without elaborating on the meaning of the amendment. My belief is that by the time the first challenged to the amendment’s meeting arrived at the SJC the justices understood it to be a very delicate case.  Although there have been numerous other challenges they have always come in the form of the powers, rights, and responsibilities of the militia and armed forces.  But in essence, the SJC’s reluctance to make any such ruling has by default affirmed an individual’s right to own a gun.

The wording of the second amendment starts by stating that each state is entitled to an armed militia. It goes on the say the “right of the people” which is using the word “people” in its plural form and not singular. At the time it was written, each state had been an entity unto its own and with limitations extended that upon ratification of the constitution. That is, under English rule each colony was headed by a chief executive, the governor, just as it is today. No colony was answerable to any other colony, and each enlisted, trained, and fielded its own militia as a defense force. The Townsend Acts of 1768 tried to end that when colonial governors were replaced with British governor generals and the armed militia was declared illegal. When British troops marched on Concord Massachusetts it was to disarm the militia. This was fresh in colonists’ minds when they wrote the constitution.

At the time the constitution was written there was a general mistrust of a central “federal” government. We could easily have had a signed constitution a year earlier were it not for that very fact and the difficulty in defining what the federal government would look like. People from Massachusetts did not see things the way Virginians did and Virginians not the way Georgians did. Those were seats of power at the time. An example of just how disparate these views were sits in the form of the “Bill of Rights” or the first ten amendments. Those amendments, plus a law banning slavery, were in the original constitution but the writers recognized they could not get the constitution ratified with all those things in the original document.

Now if you look at the Townsend Act, the Quartering Act, and a series of other laws instituted by Britain in the late 1760s alongside the “Bill of Rights” you will find they line up really well. But it took a full two years before these amendments were enacted, from 1789 when they were proposed to 1791 when they were ratified.  You must remember, however, at the time there were three basic types of guns, pistols, muskets, and cannons.  They did not envision things like revolvers, automatics weapons and other sorts of ordinance that exists today.

That said, I personally believe that individuals ought to have the right to possess any gun they want.  I have no desire to see any weapon declared illegal for an individual to own.  There are exceptions, of course, which I think even the NRA would not have a problem with.  Those exceptions are weapons like live hand grenades and missiles of any sort.  Where the NRA and I disagree is how people come to own such weapons and the terms upon which they can hold them.  I cannot imagine why any responsible individual would dislike background checks and registration, other than laziness and selfishness.  Why is it you do not mind that the government can track your car but not your gun?  Why is it intrusive to assure you have the right to own a weapon when you are purchasing one?  A reasonable person wanting to keep guns out of criminal hands cannot in good conscience challenge the safety of all to their own selfish ends.

Finally, I was not clear as to my meaning of what was happening at the end of the 19th century for that I apologize.  Most cities, and some states, had ordinances in place that outlawed “open carry” of guns.  In time, some states saw fit to overturn these laws with laws of their own, or to reaffirm the law.  At the end of the 19th century and the beginning of the 20th century states took it upon themselves to makes laws for the entire state that had previously been held by municipalities; liquor sales, employment, age requirements, and gun laws.  The gun laws became even more stringent during the 1920s when organized crime arose.   The idea that lawless was returning to the streets of America was abhorrent to the average citizen.  But by 1940 better state police forces and stronger federal law enforcement brought an end to that.  This started a period of good feeling by the general public.

I personally have no problem with people openly carrying weapons.  But I moderate that by saying I want the security of knowing that behind that gun is an individual permit to be carrying it.  I want to know that any person openly carrying a weapon has been properly vetted by law enforcement to insure that they actually have a right to own the gun in the first place.  I think in the case of Oklahoma, and any other state, if such assurances are given an open carry law will pass easily.


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