California’s Unloaded Open Carry Bans: A Constitutional and Risky, but Perhaps Necessary, Gun Control Strategy


California recently passed bans on openly carrying an unloaded gun in public, but these bans may ironically result in increased concealed carrying of loaded guns in public. Before the recent string of mass shootings in Arizona, Colorado, and Connecticut, and before the U.S. Senate’s failed effort to pass gun control legislation, California strengthened its already strict gun control framework by passing Assembly Bill (A.B.) 144 and A.B. 1527. A.B. 144, which took effect in January 2012, bans individuals from openly carrying unloaded handguns. A.B. 1527, which took effect in January 2013, bans individuals from openly carrying unloaded rifles and shotguns. Gun rights groups argue that, with these bans in effect, a person can carry a gun in public only if she obtains a concealed carry weapons (CCW) permit. But because such permits are difficult to obtain in highly populated counties, the groups further argue that the discretionary permitting process infringes on what they view as a person’s Second Amendment right to carry in public.

But the gun rights groups overlook the fact that the bans on both unloaded and loaded open carry have an exception for when a person reasonably believes that any person or any person’s property is in immediate, grave danger. Two federal district courts in California relied on this exception to uphold the CCW permitting process before the passage of A.B. 144 and A.B. 1527. Assuming that there is a right to carry a gun in public for self-defense against a specific threat, a court would likely rely on this exception to uphold again the CCW permitting process even with the new unloaded open carry bans. But their constitutionality is not guaranteed. California’s passage of A.B. 144 and A.B. 1527 has thus made its concealed carry framework vulnerable to another constitutional challenge. Nevertheless, given the federal government’s failure to move forward on gun control, California’s risky move may be necessary to push forward both the statewide and nationwide gun control movements.

About the Author

Charlie Sarosy is a J.D. Candidate at UCLA School of Law, 2014, and a Discourse Editor of UCLA Law Review, Volume 61.

By uclalaw