Open Carry for All - Article Review

Open Carry for All: Heller and Our Nineteenth-Century Second Amendment" by Jonathan Meltzer, published in The Yale Law Journal, Volume 123, Issue 6 (2014) is a very detailed examination of the right to Open Carry under the 2nd Amendment to the United States Constitution.  

Meltzer, then a recent Yale Law School J.D. (2013) and serving as a law clerk to Judge J. Harvie Wilkinson III on the Fourth Circuit, argues that the Supreme Court's decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010) compel an originalist interpretation of the Second Amendment that protects a right to openly carry firearms in public for self-defense, while permitting states to prohibit concealed carry.

The core issue is the post-Heller scope of the right to bear arms outside the home. Lower courts had split: some confined Heller largely to the home (e.g., Fourth and Maryland cases), others struck down total bans on public carry (e.g., Seventh Circuit in Moore v. Madigan), and some adopted an "alternative outlet" approach allowing states to choose between open and concealed carry (e.g., Ninth Circuit in Peruta). Meltzer contends neither extreme—no carry right outside the home, nor unrestricted carry, nor state discretion over the mode—aligns with Heller's methodology.

The article proceeds in three main parts:

1. It reviews Heller and McDonald's holdings (individual right to keep and bear arms for self-defense, incorporated against states) and the resulting circuit split and varying state laws on public carry.
2. It examines historical sources. Founding-era evidence is sparse on carry regulations, but antebellum (pre-Civil War) state supreme court decisions repeatedly upheld concealed-carry bans while affirming open carry as essential to self-defense. Cases like State v. Reid (Ala. 1840), Nunn v. State (Ga. 1846), State v. Chandler (La. 1850), and others distinguished concealed weapons (often linked to nefarious intent) from open carry (aligned with legitimate self-defense and the "bearing" of arms). This nineteenth-century jurisprudence, which Heller itself relied on heavily (e.g., citing Nunn), forms the key historical analog.
3. Applying Heller's text-and-history approach, Meltzer concludes that the Second Amendment protects open carry outside the home but does not extend to concealed carry. He rejects confining the right to the home (inconsistent with self-defense needs and Heller's language about confrontation), the "alternative outlet" theory (history does not treat open and concealed as interchangeable), and total deregulation.

An interesting point made in the article is:

Read broadly, they grant wide authority to officials to prevent the carrying of weapons, especially their open carry. Construed more narrowly, they would allow the proscription of open carry only if the carrier were engaged in some sort of particularly aggressive activity or was actively trying to scare those around him. Thus, their implications are enormous for the legality of the right to carry in twenty-first century America. Unfortunately, as with much of the Founding-era source material, the correct interpretation is far from clear.  (Page 1508)

As historical precedent is the core of 2nd Amendment interpretation, the above paragraph frames the issues to be debated in future court cases.

In conclusion, fidelity to Heller's originalism demands constitutional protection for open carry—even if politically contentious or practically disruptive in modern urban contexts. Meltzer notes the Supreme Court might avoid this outcome by expanding historical inquiry or shifting reasoning, but such avoidance would undermine the decision's methodological consistency.

Of interest is the idea that concealed carry was the real controversy.  Open carry was accepted and usual.  Currently in California a person having a concealed carry permit must hide the weapon vs the historical precedent favoring display of the weapon.

Anyone interested in the Open Carry issues should download this article and read it.

Daniel Horowitz 

If you have a 2nd Amendment issue please contact the lawyers at the Law Office of Daniel Horowitz.  (925) 283-1863