Posted on July 29, 2013
In recent years, Americans have been shocked to see images of gun-toting individuals openly carrying firearms in public places like coffee shops, restaurants, public parks and at political rallies. Many of these people identify themselves as part of a growing “open carry movement,” a collection of grassroots groups nationwide whose confrontational style has drawn criticism even from the mainstream gun lobby.1
While most states have adopted licensing systems to regulate the concealed carrying of firearms, the recent surge in open carrying has exposed weak state laws around the country that permit this dangerous conduct.
Open carry advocates seek to normalize the carrying of firearms in public places, and often use open carrying to protest what they see as unjust state firearms laws. While members of the open carry movement argue that they are just “exercising their rights,” the open carrying of firearms intimidates the public, wastes law enforcement resources, and creates opportunities for injury and death due to the accidental or intentional use of firearms.
Open carrying poses particular challenges for law enforcement officers who must respond to 911 calls from concerned citizens about people carrying guns in public. A press release issued by the San Mateo County, California, Sheriff’s Office describes the significant challenges that open carrying creates:
Open carry advocates create a potentially very dangerous situation. When police are called to a “man with a gun” call they typically are responding to a situation about which they have few details other than that one or more people are present at a location and are armed. Officers may have no idea that these people are simply “exercising their rights.” Consequently, the law enforcement response is one of “hypervigilant urgency” in order to protect the public from an armed threat. Should the gun carrying person fail to comply with a law enforcement instruction or move in a way that could be construed as threatening, the police are forced to respond in kind for their own protection. It’s well and good in hindsight to say the gun carrier was simply “exercising their rights” but the result could be deadly. Simply put, it is not recommended to openly carry firearms.2
Claims that open carrying is needed for self-defense are belied by the available research. Even when a gun is used in self-defense, which is rare, research shows that it is no more likely to reduce a person’s chance of being injured during a crime than various other forms of protective action.3 One study suggests that carrying a firearm may actually increase a victim’s risk of firearm injury during the commission of a crime.4 Instead of improving safety, open carrying needlessly increases the likelihood that everyday interpersonal conflicts will turn into deadly shootouts.
In addition, in states that allow open carrying without a permit, law enforcement officers may be prohibited from demanding identification when stopping an individual who is openly carrying a firearm.5 Without identification, those officers are unable to confirm whether the individual is eligible to possess a firearm under federal or state law.
Three states (California, Florida, and Illinois) and the District of Columbia prohibit the carrying of any firearm openly in public. Another three states (New York, South Carolina, and Texas) prohibit the open carrying of a handgun, but not a long gun, and another three states (Massachusetts, Minnesota, and New Jersey) prohibit the open carrying of a long gun, but not a handgun. In the remaining states, the open carrying of firearms is generally allowed, although some states require the person to first obtain a permit or license.
Please note that open carry laws frequently have exceptions. In states that allow open carrying, most still prohibit open carrying in some specific locations such as schools, state-owned businesses, places where alcohol is served, and on public transportation, among many other locations. The lists below are meant only to reflect whether open carry is generally allowed or prohibited.
Description of State Laws Governing the Open Carrying of Firearms
1. Open Carrying of Handguns: Only six states, California, Florida, Illinois New York, South Carolina, and Texas, as well as the District of Columbia, prohibit the open carrying of handguns in public places. Thirty-one states allow the open carrying of a handgun without any license or permit, although in some cases the gun must be unloaded.6 Thirteen states require some form of license or permit in order to openly carry a handgun. See our summary on Carrying Concealed Weapons for details about these licenses and permits.
States that Require a Permit or License to Openly Carry Handguns
2. Open Carrying of Long Guns: Six states, California, Florida, Illinois, Massachusetts, Minnesota and New Jersey, as well as the District of Columbia, generally ban the open carrying of long guns (rifles and shotguns). In the 44 remaining states, openly carrying a long gun is legal, although in three of these states, Iowa, Tennessee and Utah, the long gun must be unloaded.36 In addition, Virginia and Pennsylvania limit the ability to openly carry long guns in certain cities.37 In a majority of states, it is legal for an individual to openly carry a loaded firearm in public without a permit.
The features listed below are intended to provide a framework from which policy options may be considered. A jurisdiction considering new legislation should consult with counsel.
- The open carrying of any kind of firearm is prohibited, and no exception is made for permit-holders (California, Florida, Illinois)
- If a comprehensive ban on open carrying is not possible:
- Open carrying is limited to permit-holders (13 states require a permit to openly carry a handgun; Minnesota and New Jersey require a permit to openly carry a long gun);
- Firearms that are openly carried must be unloaded (North Dakota requires openly carried handguns to be unloaded; Iowa, Tennessee, and Utah require openly carried long guns to be unloaded); and
- The open carrying of firearms is subject to certain location restrictions,51 including a prohibition against open carrying in specific densely populated cities (Pennsylvania, Virginia)
- “‘I’m all for open-carry laws,’ said Alan Gottlieb, founder of the Second Amendment Foundation, a gun rights advocacy organization in Washington State. ‘But I don’t think flaunting it is very productive for our cause. It just scares people.’” Ian Urbina, Locked, Loaded, and Ready to Caffeinate, N.Y. Times, March 8, 2010, at A11. [↩]
- San Mateo County Sheriff’s Office, “Unloaded Open Carry,” Jan. 14, 2010, available at http://www.calgunlaws.com/wp-content/uploads/2012/09/San-Mateo-County-Sheriffs-Office_Unloaded-Open-Carry.pdf. [↩]
- David Hemenway, Private Guns, Public Health 78 (2004). [↩]
- Charles C. Branas et al., Investigating the Link Between Gun Possession and Gun Assault, 99 Am. J. Pub. Health 2034 (2009). [↩]
- See St. John v. McColley, 653 F. Supp. 2d 1155, 1161 (D.N.M. 2009) (finding an investigatory detention violated the Fourth Amendment where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in New Mexico); Brown v. Texas, 443 U.S. 47 (finding that an arrest for failure to provide identification upon a demand from law enforcement violated the Fourth Amendment when the officers lacked sufficient grounds for the initial investigatory detention). [↩]
- See, e.g., N.D. Cent. Code, § 62.1-03-01(1). [↩]
- Cal. Penal Code §§ 26350, 25850. [↩]
- See D.C. Code § 22-4504.01. [↩]
- Fla. Stat. Ann. § 790.053(1). Florida allows a person who is licensed to carry a concealed firearm to “briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense.” Id. [↩]
- 720 Ill. Comp. Stat. 5/24-1(a)(10). The Firearm Concealed Carry Act, adopted in 2013, provides that an individual with a license to carry a concealed firearm may carry a loaded or unloaded concealed firearm, fully concealed or partially concealed, on or about his or her person. 430 Ill. Comp. Stat. 66/10(c)(1). [↩]
- N.Y. Penal Law § 265.01(1). New York has a permitting system under N.Y. Penal Law § 400.00(2), but does not have a category that allows for a permit to openly carry a handgun. [↩]
- South Carolina’s statute criminalizing the carrying of handguns, whether openly or concealed, has no exception for a person carrying openly with a concealed weapons permit. See S.C. Code Ann. § 16-23-20(12). See also S.C. Code Ann. § 23-31-217. [↩]
- Tex. Penal Code §§ 46.02(a) 46.035(a), (b). [↩]
- Conn. Gen. Stat. §§ 29-28(b), 29-35(a). [↩]
- Per Ga. Code Ann. § 16-11-127(c), license holders may openly carry a handgun anywhere except in specifically-defined locations under Georgia Code Ann. § 16-11-127(b), (c). [↩]
- Under Hawaii Rev. Stat. Ann. § 134-9(a), in an “exceptional case” a chief of police may issue a permit to carry an unconcealed handgun for possession only in that county. [↩]
- Ind. Code Ann. § 35-47-2-1(a). [↩]
- Iowa Code § 724.4(1), (4)(i). [↩]
- Md. Code Ann., Crim. Law § 4-203(a), (b)(2). [↩]
- Mass. Gen. Laws Ch. 140, § 131. [↩]
- Minn. Stat. § 624.714. [↩]
- N.J. Rev. Stat. § 2C:39-5(b); N.J. Rev. Stat. § 2C:58-4(a). [↩]
- Okla. Stat. tit. 21, §§ 1289.6, 1290.1 – 1290.26. See http://www.ok.gov/governor/OpenCarryFAQ.html. [↩]
- R.I. Gen. Laws § 11-47-18(a). [↩]
- Tenn. Code Ann. § 39-17-1308(a)(2). [↩]
- Utah Code Ann. § 76-10-523(2)(a). A person may carry an unloaded handgun in public without a permit. Utah Code Ann. § 76-10-505(1)(b). [↩]
- Based on K.J. v. State, 690 So. 2d 541 (Ct. Crim. App. 1997), the law “does not prohibit carrying an unlicensed pistol if the pistol is unconcealed and the person is on foot.” Id. at 544. Alabama Code § 13A-11-52 provides that “no person shall carry a pistol about his person on private property not his own or under his control unless the person possesses a valid concealed weapon permit or the person has the consent of the owner or legal possessor of the premises.” This statute, revised in 2013, now bans open carrying of a handgun on another person’s private property, unless with a CCW permit or consent of the property owner, and would appear to allow open carrying on public property. [↩]
- There are some location restrictions in Alaska. See Alaska Stat. § 11.61.220(a)(2)-(4). [↩]
- It is unlawful to carry a handgun openly if the purpose is to attempt to “unlawfully employ” it against another person. Ark. Code Ann. § 5-73-120(a). But see Ark. Op. Att’y Gen. 2013-047, 2013 Ark. AG LEXIS 58 (July 8, 2013) (opining that a recent amendment to Arkansas law does not, by itself, authorize open carry). [↩]
- While Michigan Comp. Laws § 28.422(1) appears to ban open carrying of a handgun without a permit, a Michigan State Police legal update from October 26, 2010, states that open carrying without a permit is lawful. [↩]
- Missouri Rev. Stat. § 571.037, adopted in 2012, allows a person with a valid concealed carry endorsement or concealed carry permit, and who is lawfully carrying a firearm in a concealed manner, to “briefly and openly display the firearm to the ordinary sight of another person” in a non-threatening manner. No other laws prohibit open carrying in Missouri. [↩]
- In North Dakota, a person may openly carry a handgun during daylight hours, as long as the gun is unloaded. N.D. Cent. Code § 62.1-03-01(1). If the person has a concealed weapons permit, he or she may carry the handgun loaded at any time of day. N.D. Cent. Code § 62.1-03-01(2)(a). [↩]
- Open carrying of handguns is allowed everywhere in the state except Philadelphia. 18 Pa. Cons. Stat. Ann. § 6108. Any person licensed to carry a firearm in Pennsylvania is exempt from the open carrying prohibition in Philadelphia. Id. [↩]
- In Virginia, the open carrying of certain handguns is prohibited in specific populous cities and counties. See Va. Code Ann. § 18.2-287.4. [↩]
- Open carrying in Washington is subject to certain location limits under Wash. Rev. Code § 9.41.300. [↩]
- See Iowa Code § 724.4(1), Tenn. Code Ann. § 39-17-1308(a)(1), and Utah Code Ann. § 76-10-505(1)(b). [↩]
- See 18 Pa. Cons. Stat. § 6108 (open carrying of long guns prohibited in Philadelphia); Va. Code Ann. § 18.2-287.4. [↩]
- Cal. Penal Code § 26400(a). [↩]
- See D.C. Code § 22-4504.01. [↩]
- Fla. Stat. Ann. § 790.053(1). [↩]
- 720 Ill. Comp. Stat. 5/24-1(a)(10). [↩]
- Massachusetts generally bans the open carrying of long guns. Mass. Gen. Laws ch. 140, § 129C. Massachusetts permits the open carrying of long guns with the proper permit(s) or license(s). Mass. Gen. Laws ch. 140, § 131. [↩]
- Minnesota generally prohibits the open carrying of long guns. Minn. Stat. § 624.7181, subd. 2. Concealed weapons permit holders are exempt. Minn. Stat. § 624.7181, subd. 1(b)(3). [↩]
- New Jersey allows the open carrying of a long gun with a proper permit. N.J. Rev. Stat. § 2C:39-5(c). [↩]
- Iowa prohibits the open carrying of loaded long guns. Iowa Code § 724.4(1). [↩]
- Michigan allows the open carrying of long guns, but with specific location limits. Mich. Comp. Laws § 750.234d(1). Concealed weapons permit holders are exempt from these location limits. Mich. Comp. Laws § 750.234d(2)(c). [↩]
- Open carrying is allowed throughout Pennsylvania except in Philadelphia. 18 Pa. Cons. Stat. § 6108. [↩]
- In Tennessee, a person may openly carry a long gun if it is unloaded. Tenn. Code Ann. § 39-17-1308(a)(1). [↩]
- Utah prohibits the open carrying of loaded long guns. Utah Code Ann. § 76-10-505(1)(b). This prohibition on carrying loaded long guns does not apply to concealed weapons permit holders. Utah Code Ann. § 76-10-523(2)(a). [↩]
- Virginia prohibits the open carrying of certain types of loaded rifles and shotguns in specific populous cities and counties. See Va. Code Ann. § 18.2-287.4. [↩]
- See our summary on Concealed Weapons Permitting regarding restrictions on the locations where firearms may be carried. [↩]