Recall that I had some questions for Eugene Volokh here?  Eugene responded thusly via email:

Eugene: To answer your questions, of course if a state decided to order police officers to carry concealed, police officers would have to carry concealed – just as it can tell them what kinds of guns to carry, what kinds of uniforms to wear (or not wear, if they’re undercover), or whatever else.  When the state hires someone to provide armed protection for the public, it can tell prescribe in great detail just how this duty is to be carried out (and how it is not to be carried out).

HPS: Thanks for the response, but I confess that I find it most unsatisfying because you have grounded your answer in contractual obligations rather than whether something rises to the level of being an infringement of basic rights.

Eugene: Well, you asked a question:  “Suppose rather than the rights of an ‘ordinary’ citizen being addressed here it was the rights of law enforcement officers who may need to defend their lives….  Would any court in the land have dared to force LEOs to carry concealed?”  The answers is every court in the land would uphold such a requirement.  (Indeed, I’m pretty sure that many nonuniformed police officers are expected to carry concealed, and are sometimes required to carry concealed.)  Now you say you’re unsatisfied because my answer is based on contractual obligations.  (To be precise, it’s based in the government’s power to fire employees, with or without a contract, who don’t follow its rules on such matters.)  But your own question was premised on “contractual” matters:  The only reason that law enforcement officers are law enforcement officers is that the government has hired them to do the job.  You can’t ask a question about what law enforcement officers – who are called that only because they are a particular kind of employee – can be forced to do (on pain of losing their jobs), and then sensibly object to the answer that law enforcement officers have to follow the rules set forth by their employers.

Perhaps because of an unintentional misdirect on my part, I think Eugene is missing the broader point I tried to make.  If it isn’t an infringement on rights to force individuals to carry concealed rather than openly, is he in fact not acknowledging the very real delay in presenting the weapon for use with an effective sight picture (carrying concealed means that the weapon can get hung on shirts, pants, and other clothing, and certainly means a delay in presenting the weapon due to the need to remove the offending clothing in order to get to the weapon).

And if this is all true, wouldn’t LEOs point it out if we required them to carry concealed?  And if this isn’t an infringement of rights, then at what point does it become so?  Can the law require us to have one hand tied behind our back?  If seems a silly question, and how about one to which the courts would no doubt be more amenable?  Would it infringe on our rights if the law required us to have our weapons unloaded, regardless of method of carry?  Or would it infringe on our rights if the law required us to have two or more garments covering a weapon in order to ensure that we had no inadvertent flashing of the weapon if we bend over or in a stiff wind?

Eugene has more on open carry.

… it seems to me that, under the First Amendment, the state can’t ban someone from wearing a T-shirt or a large pin saying “I’m legally carrying a concealed handgun” at the same time that he is legally carrying a concealed handgun. The T-shirt or pin wouldn’t be a punishable threat of illegal conduct, because it is specifically referring to legal conduct, and it offers no reason to think that the wearer is going to use the gun illegally. And while wearing such an item might draw police attention, so would legal open carry.

Let’s take this sort of “announced carry” — concealed carry coupled with a statement that one is carrying — a step further. Say that some gun rights enthusiasts start wearing transparent plastic gun-shaped things strapped to their hips, in transparent holsters — something that is obviously not a real gun, but is symbolic of a real gun. (It should certainly not look like these T-shirts with realistic-looking holsters and guns printed on them.)

When asked, the wearers explain that these are symbolic of the fact that they are indeed lawfully carrying a concealed gun. The news gets out, and wearing such a transparent item on one’s hip will become understood as equivalent to a T-shirt saying “I’m legally carrying a concealed handgun.” (Compare how wearing particular ribbons or other symbols becomes understood at times as a particular kind of statement.) I likewise think this can’t be banned; the only reason to ban the holster would be the message that it sends, which would likewise violate the First Amendment.

On balance, the effect wouldn’t be terribly different from open carry …

Well, I think it would, and Eugene doesn’t account for the fact that some of us who open carry are not doing so in order to make a point (although I don’t disparage point-making as a legitimate end).  I consider concealed carry to be intrusive, uncomfortable and inefficient regarding “presentation” of the weapon.

What do readers think?

The Washington Post:

So the Florida Court of Appeal held Wednesday in Norman v. State. It concluded that the Second Amendment applies to carrying for self-defense outside the home.

“A blanket prohibition on carrying [a] gun in public prevents a person from defending himself anywhere except inside his home,” and as such constitutes a “substantial … curtailment of the right of armed self-defense.”

… the Legislature’s discretion in this area is not limitless. For example, the [Second Circuit] in Kachalsky upheld New York’s prohibitive licensing scheme using an intermediate scrutiny analysis that gave too much deference to the legislature, without considering the fact that the licensing scheme in question rendered the right to bear arms outside the home virtually non-existent…. A right is essentially “destroyed [if the] exercise of [that] right is limited to a few people, in a few places, at a few times.”

The Legislature “has a right to prescribe a particular manner of carry, provided that it does not ‘cut[] off the exercise of the right of the citizen altogether to bear arms, or, under the color of prescribing the mode, render[] the right itself useless.’” The Legislature is permitted to regulate the manner in which arms are borne for the purpose of maintaining public peace and safety, so long as any such regulation leaves available a viable carry mode.

I think the court was quite right to recognize a right to carry guns in public for self-defense (for more on this, see here). I also think the court was right to allow the state to limit such carrying to concealed carrying, precisely because such carrying doesn’t substantially interfere with the ability to defend oneself. (That’s especially so because, if a situation arises in which a person reasonably perceives an imminent threat of death or serious bodily injury, the person would be free then to display the gun in self-defense, as well as use it, if necessary.)

So let’s play a thought experiment.  Suppose rather than the rights of an “ordinary” citizen being addressed here it was the rights of law enforcement officers who may need to defend their lives.  Would Eugene have made the same argument?  Would law enforcement have stood for being told they must carry concealed?  Would any court in the land have dared to force LEOs to carry concealed?  Do you think law enforcement would make the argument that drawing from a concealed carry position (IWB covered by clothing or perhaps ankle carry rig) might endanger their lives more than if they have the weapon ready from open carry due to response time?

Remember under Tennessee versus Garner LEOs can use their weapons for the very same reason we can use ours, i.e., for self defense or the defense of the life of someone else (or to prevent assault or bodily injury), and for no other reason(s).  So then how are we any different than LEOs, and why should such requirements be placed on us if they are not placed on LEOs?  How is it the right decision by the court to uphold a law that treats us differently?

Surely Eugene knows as much about Tennessee versus Garner (and its follow-on cases) as we do.  Does Eugene have an answer for why it’s okay for the court to treat us differently?  Has Eugene thought through this clearly enough yet?

Just not open carry for cops.  Raw Story:

A Texas police chief belittled an open carry activist who claimed there was an easy way to determine who was a “bad guy” with a gun.

Chris Hall spoke out last month during a rally at the statehouse organized by Come and Take It – Texas, saying there’s little reason to fear someone openly carrying a gun around in public.

“The easiest way to find out if it’s a bad guy is which direction it’s pointed,” said Hall, who was carrying a rifle over his shoulder at the time. “If it’s pointed at you, they’re a bad guy. If it’s not pointed at you, don’t worry about it.”

But Ray Hunt, president of the Houston Police Officer’s Union, dismissed the pro-gun activist’s comments as ridiculous.

“That person’s never been a police officer and never been shot at,” Hunt said. “That’s what I would have to say to that person.”

[ … ]
Hunt admitted that concealed carry did not create some of the problems that police feared, and he said officers would adjust if open carry is passed.

“It clearly is going to make our job different and more difficult, but not something that we can’t live with,” he said.

Houston’s police chief said open carry would make police work even more dangerous.

“As a police chief trying to keep two and a half million people safe, I’m just opposed to inserting more guns into a situation that I feel like could cause more harm,” said Houston Police Chief Charles McClelland.

Hunt is lying and he knows it.  Nothing about open carry will make his job more difficult.  It many ways it might be easier.

As for the Houston Police Chief, he has his own problems that should occupy his attention rather than allowing progressive political causes like gun control to consume him.

“A Houston Police Department officer has been relieved of duty after being charged with allegedly stealing $60 worth of ammunition from an outdoors store.  Stephen Sargent, 26, has been on the force for two months and is still considered a probationary officer. HPD will decide what disciplinary action to take after an internal affairs investiagtion can be completed, officials said.”

“Former Houston Police officer Robert Manzanales is charged with tampering with a governmental record – a felony. He was allegedly part of a scheme in which traffic officers listed each other as witnesses when issuing citations so they could later claim overtime while waiting at municipal court in the event they were needed to testify. He is also accused of perjury for allegedly lying on the witness stand.”

“Dothan police arrested a longtime Houston County Sheriff’s deputy over the weekend, charging him with third-degree domestic violence for a dispute with his stepchild.”

So tell me again, just who are these criminals who open carry, and who will make life more difficult for the police?

Survival Blog:

Much like a muscle that atrophies with disuse, any right that goes unexercised for many years devolves into a privilege, and eventually can even be redefined as a crime.

Open carry was once the norm.  Concerning our founders, “Their laws about children and guns were strict: every family was required to own a gun, to carry it in public places (especially when going to church) and to train children in firearms proficiency. On the first Thanksgiving Day, in 1621, the colonists and the Indians joined together for target practice; the colonist Edward Winslow wrote back to England that “amongst other recreations we exercised our arms, many of the Indians coming amongst us.”

If we want a culture where open carry is once again the norm, the only way to effect that change is to open carry on a regular basis to make it the norm.

The Austin-American Statesman is carrying an opinion piece by John Lott on the open carry bills in Texas.  It is subscription, but Mr. Lott also mirrors the entire commentary on the web site Crime Prevention Research Center (where he is president).  Mr. Lott felt the latitude to undercut the Austin-American Statesman by publishing the entire piece on his site, but I will only provide excerpts.

With well over 700,000 concealed handgun permit holders in Texas, there is a good chance that someone next you in a grocery store or restaurant is carrying a concealed handgun. But some are only satisfied if others actually know that they are carrying.  They think that by openly carrying guns they can make others comfortable with guns. They want to make a statement.

Texas lawmakers are now wrestling with the questions of campus carry and open carry. They couldn’t face a clearer choice between enhancing safety or making political statements.

Open carry advocates carry rifles because they can’t legally openly carry handguns. While no problems have occurred, simply handling a rifle as opposed to keeping a handgun in a holster, raises the risk that something might go wrong.

Open carry advocates have not been the best at public relations and they have scared some people. Much has been made of supposed gun bans by Starbucks, Jack in the Box, Chipotle, Wendy’s, Applebee’s, Chili’s and Sonic’s supposedly banning guns. In fact, these companies merely “respectfully request” that customers not openly carry guns. Passing an open carry law where proponents carried handguns, instead of rifles, would be less threatening and thus likely make it less of a PR issue.

Still, there is a more basic problem with open carry – it isn’t as effective in protecting people.

Criminals and terrorists can strike anywhere and at any time, that gives them a huge strategic advantage. When an attacker sees someone openly carrying a gun, they can either attack that person or wait for a more opportune moment. Alternatively, they can select another target.

Concealed carry makes attacks riskier. A killer can’t attack an auditorium in Texas without facing near-certain resistance. And, of course, an attacker has no idea who might be packing heat.

[ … ]

Open carry isn’t bad, but concealed carry is better. There are more important changes to be made. At $140, Texas has one of the highest permit fees in the US. Lower fees would increase the number of people who can protect others. It would especially help those who are most likely to be victims of violent crime — poor blacks living in high-crime urban areas.

If safety is the goal, let’s eliminate gun-free zones or lower permit fees. Open carry may make a political statement, but is that really the top priority?

In order fully to answer this, I have to point folks back to an article I wrote entitled Suburban Battle Rattle.  I didn’t write this to be silly, trivial or even tendentious.  I did it in order to get feedback from readers about what they do and how they approach this subject.

Mike Vanderboegh linked it, and one reader in particular put me on edge by saying this.

I would not recommend an ankle rig unless it was for your “third gun”. For years I worked plain clothes assignments as a DA Investigator. I was in some of the worst areas of SoCal. My duty weapon was a Glock 19 in a very secure DeSantis rig on my right hip. In my left front pants pocket was a S&W model 37 with a bobbed hammer in a Galco pocket rig. Extra mags were on my belt and in the left pocket of my sport coat, I kept an impact device, edged device, and a few other lightweight goodies.

If you have to evac and area in a hurry, ankle rigs will not only slow you down, they can loosen and start spinning around your ankle. Been there, done that.

The best weapon I had was the one between my two ears. Situational awareness and OODA techniques kept me in one piece until I was eligible to retire. H/T to Mr. Mike: I did not poke any wolverines in their nether regions unless I had a good plan in place and a secure method of egress.

” …ankle rigs will not only slow you down, they can loosen and start spinning around your ankle. Been there, done that.”  I don’t so much disagree with him, as dismiss it as bluster if he doesn’t back it all up by political action and other necessary things to force changes to both law and cultural norms to allow open carry.  Let me explain a bit and then I’ll get back to John Lott.

I’ve had my ankle rig swing around on me too, and beyond that, if I needed it quickly I am hampered by the location of the weapon and its being covered by my trousers.  But it’s one thing to complain about ankle rigs while you’re a LEO who can open carry, and quite another to work to change the situation for those of us who cannot open carry all of the time.

Even though my own home state is a traditional open carry state, I cannot open carry all of the time because of cultural norms.  Sometimes I am left with concealed carry IWB or ankle rig.  I find IWB carry obnoxious for a number of reasons, including but not limited to: (1) sweat and body oils rust and corrode your weapon, (2) it’s uncomfortable, and (3) you must use a small handgun or print your clothing.

With swollen knuckles due to my arthritis, I cannot efficiently handle small frame subcompacts (I do just fine with larger frame weapons).  So I am left with a large frame weapon which weighs too much and prints at my side.  I may as well use a rigger’s belt and open carry, which I find significantly more comfortable than IWB carry.  I’m saying all of this to suggest that Lott’s assertion that open carry is done in order to make a political statement is both insulting and ignorant.  When I open carry, I don’t do it to make any kind of statement.

But beyond being insulting and ignorant, Lott’s procedure is the same as he has used before, and it is as objectionable as it has always been.  As I’ve stated before:

“What happens to society at the macroscopic level is immaterial.  My rights involve me and my family, and don’t depend on being able to demonstrate that the general health effects in society are not a corollary to or adversely affected by the free exercise of them.  It’s insidious and even dangerous to argue gun rights as a part of crime prevention based on statistics because it presupposes what the social planners do, i.e., that I’m part of the collective.”  I object to John Lott’s procedure, and have stated frequently that I do not believe in the second amendment.  I believe in God.  The Almighty grants me the rights to be armed, and when the Almighty has spoken, it is eternal law for all men everywhere and in all ages and epochs.  See also Holding Human Rights Hostage To Favorable Statistical Outcomes, and Kurt Hoffman on the same subject.

And that’s the main problem with John Lott and his procedure.  If you need to, read his commentary above again, very carefully.  He doesn’t come right out and say he is opposed to the legalization of open carry, but he spends his entire time trying to prove that it is inferior to concealed carry, and ends with the question, is it “really a top priority?”

He is trying to talk the Texas legislators into letting the bills perish in committee.  It isn’t good enough for him to enable the practice of God-given rights.  It isn’t good enough for him to couple with other gun rights activists to press forward to the enjoyment of more freedom.  No, for some inexplicable reason he must work to undermine the gun rights community and be divisive and schismatic.  Being quiet isn’t good enough.  He must engage in chest pounding, blathering on in front of people about how much he knows.  As to how much he supposedly knows, I do Monte Carlo particle transport calculations, worrying over things like the first, second and third moments of a problem, sampling statistics, variance reduction and meeting the central limit theorem.  John Lott doesn’t impress me (with his anecdotal accounts in the distribution “tails”) any more than the VPC or Brady gun controllers.

Ironically, while various anti-gun groups such as the VPC attempt to use arguments like this to prohibit the practice of God-given rights by a subterfuge of worthless “statistics” they don’t really understand, John Lott attempts to do the very same thing under the guise of being safe and ensuring the best response to potential attackers.  He is more like the anti-gun crowd than he would be willing to admit.  It isn’t enough that we must do battle with the collectivists to ensure the free exercise of our rights.  We must also do battle with self-proclaimed gun rights advocates like John Lott.  Working to legalize open carry in Texas doesn’t change cultural norms, but it’s a starting point.  Those of us who favor such legalization will have to step over the “gun rights” activists to make this happen.

The secret was out about a week ago.

Another hot topic this session is open carry and Senator Perry already has an idea of what may come of that.

“I think you will see open carry on multiple levels. I think at the end of the day, Governor Abbott was very clear and Lt. Patrick has said the same thing. So, if an open carry bill meets the desk of the governor, it’s going to get signed. I would say if there is a bill that comes out of the house or senate chambers regarding second amendment it will be a license to carry” Senator Perry said.

As if on cue, the bill that has been filed follows what is likely a “behind closed doors” or “gentleman’s agreement.”

AUSTIN – State Sen. Craig Estes filed a bill on Friday that would authorize open carry of modern handguns in Texas by anyone with a license, so long as the handguns are carried in shoulder or belt holsters.

Texas is currently one of the few states that does not permit citizens to openly carry modern handguns under any circumstances. The other states that deny their citizens the right to carry handguns openly are: California, Florida, Illinois, New York, and South Carolina.

“Texas is one of only six states, including California, New York, and Illinois, that still completely ban open carry,” said Estes, R-Wichita Falls, who represents Palo Pinto County. “As Governor Abbott recently said, ‘If open carry is good enough for Massachusetts, it’s good enough for the state of Texas.’”

[ … ]

If passed, the new license to carry created by this bill would replace the existing concealed handgun license. Applicants would have to meet the same requirements that they currently do to get a concealed handgun license.

That’s really too bad for Texans.  The government shouldn’t be in the business of licensing anyone to engage in a constitutional right.  Voters might want to let their elected officials feel their disapprobation.

Now, how is this law to be enforced?  Texas has no “stop and identify” statute.  Either massive confusion is on the way, or more onerous laws like a new stop and identify statute will be part of this bill (or some future bill).  Terrible.  Just terrible.

St. Louis Public Radio:

Missouri residents who have concealed-carry permits will be able to openly carry their firearms anywhere in the state, as a result of the General Assembly decision to override Gov. Jay Nixon’s veto of a broad gun-rights bill.

The bill prevents municipalities from barring people from openly carrying firearms, lowers the minimum age to 19 for concealed carry permits in the state, and allows school districts to arm teachers. Police officers also will be barred from disarming people unless they are under arrest.

The Missouri House voted 117-39 in favor of the override, with little debate, early Thursday morning.  The supporting votes included state Rep. Rick Stream, R-Kirkwood, who is running for St. Louis County executive.

Also backing the bill were two House members competing for the hot Senate seat in Jefferson County: Democrat Jeff Roorda and Republican Paul Wieland.

Earlier Wednesday, the Senate had voted 23-8 in favor of the bill. The number of supporters was the minimum needed to override a governor’s veto.

Backers say the law is needed to protect gun rights, and to prevent frivolous arrests of people carrying firearms.  Rep. Rick Brattin, R-Harrisonville, recommended that all Missourians be armed. “We live in a world that’s evil, that wants to harm each and every one,” he said.

State Rep. Stacey Newman, D-Richmond Heights, said the bill actually represented “big government” because it would “overrule cities and elected officials around the state” who have passed laws barring the open carry of weapons.

To be precise, Missouri is what’s called an anomalous open carry state, where the state lacks preemption.  Thus, while your open carry rights are recognized by the state, you may travel into locations (counties or cities) where law enforcement is not friendly to it, and run into trouble.  With the passing of this law, what’s good for one Missouri citizen is good for all Missouri citizens.

Next up on the bucket list?  Open carry in South Carolina when we put State Senator Larry Martin in his place.

I won’t wade into the recent debate over rifle-toting folks going into stores and restaurants, except to say that I’ve never done it and don’t intend on doing it.  I don’t buy the explanation that there is no safe way to observe muzzle discipline with a rifle, but I also don’t buy the notion that a rifle is the preferred weapon (and I don’t buy other things, like the notion that I’m safe when I get on the road in an automobile).  If your state doesn’t allow open carry, then replace the legislators until they do.

But there was a moment of honesty about open carry (of any weapon) displayed in a recent dustup over the issue that deserves your ponderance.

“We’ve had a tough time over the years promoting Lake Ozark as a family area,” said Alderman Larry Buschjost, who voted for the ban. “We want you on the Strip with families, everywhere in Lake Ozark with families. We want you to bring your kids down here and let them loose. For the life of me, I don’t understand why I would have to carry any type of gun, concealed or otherwise. “

As with collectivist South Carolina Senator Larry Martin (who needs to be replaced and defanged as soon as possible), when a legislator objects to open carry, he or she is rarely objecting solely to open carry.  It’s the very idea that you would have a weapon at all that they don’t like.  The good part is that if you let them talk long enough, they’ll often tell you exactly that.

Lake News Online:

Shades of the Wild West on the Strip in Lake Ozark have prompted the Lake Ozark Police Chief and other city officials to tighten the rules on openly carrying firearms.

Chief Mark Maples told the board of aldermen Tuesday night he has received complaints that individuals are openly carrying firearms as they move from business to business. Maples said he recognizes that people who have conceal and carry permits have the right to carry weapons, but the open display of guns is causing some alarm.

“I don’t see why someone would want to carry a firearm in the open,” Maples said. “If a weapon is concealed it doesn’t cause any issues.”

The LOPD has had to send an officer more than once to investigate the complaint.

“It’s a real safety concern,” he explained.

As a result, the board gave first reading to an ordinance that prohibits people from openly carrying a firearm “readily capable of lethal use in a public place.” A public place is defined as any indoor or outdoor area ― whether publicly or privately owned ― to which the public has access. Exempt is a location used exclusively for a private gathering or personal use.

City Attorney Roger Gibbons said a city can regulate the use of firearms.

“We don’t want people to carry open firearms in the city,” he said.

Missouri is generally an open carry state, but the only allowable preemption is open carry.

Of course, Mark Maples is lying.  He certainly does understand why someone would want to carry a gun openly.  If he claims otherwise, tell him to order his officers to carry concealed.  And when he tries to explain that they are law enforcement officers, remind him that the Supreme Court decided in Tennessee Versus Garner that law enforcement officers carry their weapons for exactly the same reason that we do, i.e., self defense, which is the only legitimate use of a weapon by LEOs.

As for open carry being a “safety issue,” he’s just making things up.  Open carry is no more a safety issue than concealed carry, and if he has a problem with open carry because of “safety,” then he is lying about his alleged support for concealed carry.

As for the city attorney, his job is to represent the city in legal problems without prejudice.  Whether the city allows open carry is none of his damn business.

Folks, I know that there are those who prefer to carry concealed, and honestly I would prefer not to carry at all.  I don’t wear rings, necklaces, or jewelry of any kind, and it highly annoys me even to carry a wallet or my car keys.  I don’t like things on me, around me or weighing me down.  It’s a wonder I am able to go backpacking without throwing all of my gear down somewhere on the trail.  Staying alive is the only reason I don’t get rid of all of my gear.

And speaking of staying alive, I carry despite my desires, not because of them.  Tucking a gun into my waistband is about the most hideous thing I’ve ever tried to do.  It digs into my hip and I sweat the weapon.  It’s bad for me, and bad for my gun.  I much prefer concealed carry some other way (than IWB) if I must conceal.  But I don’t like to conceal, and find open carry somewhat less irritating than concealed carry.  Note that I didn’t say I like it.  I find it less annoying.

Since my desires in this matter are in line with our wise founders (who expected men to carry weapons to church with them and practice on Sunday), I feel that it’s my detractors who bear the weight of burden, not me.  My practices are in line with our history.

One writer from Michigan weighs in this way.

When a man was seen carrying a rifle down Cork Street recently, people called the Kalamazoo Department of Public Safety.

There is a national movement among some gun-rights advocates to carry their guns openly in public, arguing they are exercising their Second Amendment rights.

But at what point do those rights supersede the average citizen’s right to feel safe while also walking down the street?

Where is that “right to feel safe” written in the constitution?  Tell me, chapter and verse.  I’ve told you about the historical and constitutional basis for what I do.  Now tell me about your “right to feel safe.”  And stop complaining about seeing a gun on my hip.

Denver Post: