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Open Carry Starbucks (courtesy

UCLA Law Professor Adam Winkler is no friend of ours. Back in August 2011, I outed the so-called “centrist” in a blog about his article The Secret History of Gun Control. Adam’s back on our radar with his editorial Want fewer guns on California streets? Open carry may be the answer. “San Diego will undoubtedly appeal the [Peruta] decision [striking down the just cause” provision of the city’s concealed carry provisions] in the hope of saving its restrictive policy for awarding concealed carry permits. Lawmakers who support gun control might want to consider another option: Rewrite state law to allow people to carry guns openly.” Other than the fact that San Diego did no such thing, Adam’s onto a winner here, even though he thinks it’s a loser . . .

Very few gun owners want to carry openly displayed guns. The police hassle you, stores refuse to serve you and some people won’t talk to you. Criminals might even target you, seeking to steal your expensive sidearm.

Under an open carry law, the state could still require a license, so long as it’s generally available to law-abiding adults. Counties with large cities, like Los Angeles, Orange and San Diego, could keep their more restrictive licensing requirements for concealed carry.

But if the state allowed open carry, concealed carry could be banned entirely. In the 2008 case, the Supreme Court noted approvingly that courts have consistently upheld such bans, so long as people could carry openly.

Sneaky eh? Allow open carry so you can ban concealed carry. Which is better because hardly any one will do it! Open carry’s WAY too anti-social and dangerous for even gun guys. Mr. Winkler’s not [too] stupid though. He sees the pitfalls of the open carry-to-prevent-concealed-carry strategy.

There are downsides, of course, to allowing any kind of open carry. It understandably scares many people. Gang members might use it as an excuse to brandish guns. It might further normalize the presence of guns in public.

There it is: open carry normalized the presence of guns in public. At which point more people might start carrying and less people would give a shit. In fact, the fence straddlers might abandon their pro-gun control stance entirely! And we can’t have that now can we> Or can we? As always, Winkler’s middle-of-the-road position on gun rights leaves him stranded in the middle of nowhere.

These dangers shouldn’t be minimized. But neither should they be exaggerated. Currently, 41 states allow open carry, and unloaded open carry was permitted in California until three years ago.

Open carry has an added benefit for people who don’t like guns. If a guy at Starbucks has a gun on his hip, you can see it and leave the premises. Not so if the gun is concealed.

What, you can’t leave Starbucks if someone’s carrying a concealed weapon? I see them come and go all the time! Anyway, I’m four-square behind Adam on this one: open carry all the way! “Letting people tote their guns around on their hips sounds dangerous,” he concludes. “But for those who want fewer guns on the streets, there are a million reasons to prefer open carry.” And for those Californians who want to exercise our natural, civil and Constitutionally protected right to keep and bear arms, there are a million more. Not that it should be either or, but you know what I mean.

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    • I live here and I would love open carry.
      Now folks let’s review the 9th court decision. This is not for unloaded open carry, and it is not for may issue open carry. This would be shall issue, must issue open carry more than likely without a permit. You can’t have no open with out shall issue concealed.
      Also Winkler missed the memo, San Diego will not ask for an En Banc, meaning that unless a fellow county or state enters to push this to SCOTUS then they will let sleeping dogs lie.
      The last thing they want to do and get SCOTUS to rule in favor, thus forcing shall issue in other bastions of civilian disarmament.
      We have already seen Orange County begin to change, San Jouqine also state they are changing their forms to comply.
      We are monitoring the situation. 1. Some counties are only doing like 2 to 4 interviews a day. Folks are waiting months for interviews, and I am guessing it will only get worse. I will assume we will see court cases pop up once we get a 1 year or more wait. 2. Some counties have stated they are taking forms, but will not process until there is a judgement officially entered. That is about a month, assuming no one gets a stay and files for an appeal.

    • Never happen. Everybody in California resents Orange County and especially Newport Beach.

      This open carry proposal seems to me like blatant pandering to the New Black Panthers.

  1. The last time we had OC in CA the gun had to be unloaded and you had restrictions like the 1000 foot from schools deal even with your empty gun. Open carry was a lie under the old system.

    Now, let me load up and carry anywhere except for courthouses and federal buildings, etc. and give me a viable legal option for dealing with 5-0 harassment and we’ll talk.

    otherwise my money and support is going to forcing the state to go real shall issue.

    • UOC was garbage.

      Havent been able to actually open carry in California outside a county restricted permit in unincorporated rural areas in 40 years.

      Give me LOC. Please. Don’t want to talk to me? Fine. I don’t care. Don’t want my business? Fine, I’ll go elsewhere.

      As it is, “no firearms” signs have no weight in law here to begin with.

      • I prefer concealed carry, and we may be on the verge or that here after the court ruling.

        Notice i stipulated a meaningful response to police harassment of OC’ers. I’m not Embody. I’ve worked a lifetime, since 68 to get all people in this country the right to carry. I’d hate to finally get the right just to get hammered with a felony conviction because some abusive cop felt he could get away with it.

  2. FYI, Orange County, CA sheriff has already gone on record stating they will abide by the 9th Circuit’s decision and remove “just cause” from the CCW reqs.

    Imagine that, the reason for a CCW can be self defense. Whoop! Whoop!

  3. {Needless Ad Hominem Attack Resisted}

    That is some incredibly tortured logic, especially from a law professor at a fairly prestigious university (or, at least a well known one). I’m having a bit of sense about why he’s teaching law rather than practicing it.

    I’m trying to figure out the downside for the coffee shop customer who does not like guns not knowing the law abiding concealed carrier – who has no intention of performing an illegal or immoral act with said gun – has a gun.

    Isn’t that win-win? Both customers get what they want (in addition to spending way too much money for coffee).

    • I agree. What is wrong with these people FLAME DELETED.

      Why on earth is FLAME DELETED.


    • Having known a few people who went through law school, it seems to me that a decent portion of law school is learning not what the law says, but how to adapt your mind to the twisted logic required to interpret law to mean what it most certainly does not say.

      A prime example is the torture inflicted upon the interstate commerce clause which as been applied to anything that ‘affects’ interstate commerce, an argument based on ad admission that what is being included is not actually covered by the clause.

      No wonder lawyers end up with $100k in debt in a profession they don’t’ want to practice.

    • You are wrong. There is no tortured logic, only an unstated goal. His goal is to limit and/or eliminate the carrying of guns in public. And understanding the goal, then what he has to say makes perfect sense. He says, very directly, go ahead and let people open carry. There will be the inevitable calls to the police, followed by an excessive police response, police harassment, delays to citizens minding their own business, and all with the preferred outcome that people will be DISINCLINED to openly carry guns. With concealed carry simultaneously (AND CONSTITUTIONALLY) banned, he has described a means where by the State will have accomplished a nearly perfect ban on the carrying of firearms by citizens.

      So lay off the lawyer jibes. He is smarter than you think by dangling what you want without revealing the hand that holds the poisoned knife.

      • His logic is flawed. His reason for using flawed logic may not be out in the open, but he is attempting to make a syllogism that is illogical.

        Premise 1: Open carry makes people hate guns.
        Premise 2: People that hate guns get them banned.

        Conclusion: Open carry gets guns banned.

        There are a number of problems with this.

        For example, some people that hate guns do so whether they are open carried or not. Some people do not mind guns in general, but don’t like them open carried. There is no single equivalence between open carry and liking or disliking guns.

        Therefore, the conclusion cannot follow from the premises because the two groups represented in the premises are not uniquely represented in each premise and conclusion (they are different subsets in each case).

        Actually, I’m having trouble articulating what is wrong with the argument precisely because it’s so buried in festering tripe.

        Oh, and “smarter than I think?” Please. Everyone here sees right through his utterly transparent attempt at manipulation.

        I’ve worked with enough lawyers to recognize the ones that deserve my derision. This dude does not impress me.

        • He has managed to impress all of the federal trial courts that granted summary judgment motions in three of the four “may issue” cases now wending their way through the system I don’t remember if he was hired in Peruta–been a while.) but then again, those decisions were very politically driven–in each a summary judgment was granted despite the presence of clearly disputed and triable issues of fact.

  4. *shrug* Sounds good to me, just not for the reasons this ivory tower pantload is putting forth. In theory it means I’d be carrying a proper full size pistol or revolver every day instead of worrying about a sidearm’s concealability, which eases some worries about capacity and/or stopping power.

    Also there’s something to be said for OC as a deterrent to all unwanted social interaction, not just the violent kind.

    • Absolutely. If concealed carriers were forced to carry openly, they sure as hell wouldn’t carry little .22s, .32s, and .380s. They’d switch to more powerful calibers with higher capacities. Similarly, states that limit magazine capacity to 10 rounds encourage people to upgrade from 9mm to .40 or .45. Nice job, gun prohibitionists!

  5. While I celebrated the 9th C decision like every other gun owning Californian last week, I also knew that the fight was far from over. I foresaw this as one of the three ways anti-gun folks would passive aggressively fight this, the other two being to go after the “good moral character” clause and the other simply to maintain current manning/resources as the applications pile up until the processing time is 1-2 years.

    Anti-gunners start with the premise that guns are bad and then look for evidence that supports it while ignoring anything that contradicts it. As long as there are people ideologically opposed to certain rights, you will always have to fight, no matter how fundamental that right is or how rational you may be in defending that right. Don’t expect them to take this lying down.

    • I hate the fact that Sergio is correct. It will be a never ending battle. Here in Hawaii I’m still waiting for the Baker v. Kealoha decision, argued at the same time before the same panel wherein Hawaii’s “exceptional case” language is essentially the same as California’s “good cause”. The only difference being that at least some California counties issue permits to some people, whereas the County police chiefs in Hawaii have NOT issued one single permit to a Hawaii citizen (unless employed in the security industry) in at least 15 years. It’s going to be years of foot-dragging here before this leftist/statist government acquiesces to the Constitution and/courts.

  6. I wouldn’t trust Adam Winkler’s opinion about gun control any more than I would trust Henry Winkler’s opinion about reverse mortgages.

  7. Winkler apparently believes his own rhetoric. In places where OC is usual and customary nobody gives a damn if they see someone with a gun. Making it so in California will have the same effect.

        • You could have a unicorn on a leash, smoking a blunt, cleaning your gun, playing loud rap music while walking down the street in Oakland and no one would say, or notice, anything….. Don’t ask me how I know that…..

          Honestly, that is a good and bad thing about that city. If you had to, god forbid, be in a situation where you needed to defend yourself. No one would “snitch” on you, white black asian or otherwise. People don’t talk to the police there.

    • Agreed, especially when it comes to the Constitution. If you’re stretching the limits of your slyness to wrap words around themselves in furtherance of some personal political agenda, then it’s time one re-examines one’s character and commitment to serious inquiry.

  8. These people spend so much time trying to figure out obscure ways to screw gun owners over. Why don’t these people spend some time working to end poverty, help those in need or some other tasks? (without taking my entire paycheck)

    • Because that would be a positive, beneficial use of their time. And they wouldn’t need to be afraid of their own shadow all the time.

  9. If they don’t legalize something, they might get something legalized for them.

    It’s pretty wild to actually have the law on our side for a change!

    As for police hassling people, a few lawsuits would fix that. And with businesses refusing to serve you, where there is a demand, someone will fill it. People carrying guns would still be able to buy groceries and coffee and sandwiches from someone. Your money is still the right color.

    So by all means… let’s go with open carry. In fact, do it RIGHT NOW (before legal tapdancing finds a way to screw it up)!

  10. Last I knew, the mugwumps straddling the fence weren’t “pro-gun-control;” they were straddling the fence.

    However, I otherwise agree with RF – save for his use of ‘less’ where he should’ve used ‘fewer.’

    As for mister Winkler, ‘dafuq? I really want to throw a bushel of ad hominems at him. Hard ones. Please?

  11. Robert, I am ashamed of you: you took the bait, hook, line and sinker. What Winkler is proposing is not freedom to carry, but a clever way to legalize banning the carrying of all firearms in public. He says he is giving gun owners what they want–relief from the oppression of the concealed carry laws, and freedom to open carry. But it is all a lie.
    1. California enforces the GFSZA and its 1000 foot exclusionary rule. If you take a map of ANY city in California and superimpose the “blackout” areas of the 1000 foot zone from each and every school campus, there is hardly anyplace left in which it is legal to openly carry a firearm00whether it is loaded or not. I live in a small town. I cannot leave my property with a gun openly carried on my hip without violating the law, nor could I leave the neighbor hood without hitting another school and another school and another school on just about every major thorough fare. I could not even get out on I5, since the law applies there as well, and right off the tip of my head I can think of six schools that back up to the highway within a mile of my house. I’ve seen manps for San Francisco, Freson and Stockton–and the result is the same. It is impossible ogo from one place in the city to another without violating the law–and that violation just happens to be a felony.

    2. Winker is NOT proposing open carry like it is in 41 other states–he is recommending a return to prior law which, since Ronald Reagan signed a law in 1968, allowed only “unloaded open carry.” Under that law, you could carry ammo, but it could not be in the gun, nor could any round be in the chamber. The Penal Code specifically allowed officers, with no other probable cause, to require a gun owner to be relieved of his weapon so that the officer could check to make sure that the gun was unloaded. Although not so provided in the Code, officers inevitably used this check as an excuse to run the gun’s serial numbers (and to identify the owner who was not otherwise required to provide ID). This is the police harassment that Winkler is in fact ENCOURAGING in order to DISCOURAGE carrying of lumps of steel,


    P.S.: Winkler has provided declarations in support of police agencies in every single case I know of now pending in California in support of the unsupportable view that “more guns means more crime.”

    • I am sure Winkler is very intelligent, and there is no doubt he knows a great deal about the legal issues at hand. What he may lack is the kind of feel for the gun subculture that’s not easily acquired if you are not part of it. I have no doubt that a lot more people would open carry in CA if it became legal to open carry a loaded sidearm than he could ever imagine, more than enough to be a nuisance to the privileged class. And police harassment would go away after a few lawsuits, since there would be no shall issue concealed carry alternative. And then those opposed to guns would beg for shall issue concealed carry.

    • I was just about to comment on this particular part of the opinion piece:

      “One starting point for state lawmakers is to repeal a 2011 law that made it illegal to carry unloaded weapons openly. Before that law went into effect, Californians were prohibited from carrying a loaded gun openly, but unloaded open carry was allowed.

      Although gun owners argue that an unloaded gun is no defense at all, lower courts have disagreed. They have held unloaded open carry to be a sufficient alternative because someone confronted with danger can quickly load a weapon in seconds for self-defense.”

      Then I read your comment. I believe you are correct. The author is very devious; he wants gun owners to think he is advocating open carry when in reality he is trying to make any sort of useful carry illegal.

  12. Winkler sure called that, for SD County… just another academic drinking his own bathwater…

    But, hey, why not- lets all call our CA legislators and get behind this –

    – I can just see Mr De Leon wiggling on the hook now…:)
    – watching Shannon trying to explain this to her Fakebook cool-kids club will be worth it…)
    – the reporter questions to DiFi, Pelosi, Box-a-Rocks…priceless!

    Meanwhile, back in the real world-
    the SD Sheriifs clerk’s calendar is already full to mid-June for application for CCW appointments.

  13. this is actually one of the smartest things an anti gunner has ever proposed. i know some ca residents that would cc but not oc.

    • I’m going to have to agree with you, this is a sort of logic which is rare in their circle. You couldn’t say they were denying your rights, and honestly I don’t know if I would OC; However I certainly would CC.

      I have a friend who used to OC in San Francisco and was *constantly* being harassed by the police until ever cop in the city knew him

      I can say with certainty that many women and many of my friends, and their parents, from my home of Northern California would avoid me like the plague if I had a gun on my hip. However some have visited me here CCing and never been the wiser.

  14. In addition to other points already made, you seem to ignore the power of the media and the ideological left to Bully those with whom they disagree. Look how far that’s gotten them on their other agendas. They’re practically putting people in JAIL for declining to bake a cake for someone with whom they disagree… They have no reason not to believe they can use this tactic just as well for guns.

    We would see massive boycotts on any business that allows the carry of guns. We would see law-abiding citizens who choose to carry openly being shunned at every corner of society, in the name of “private property rights.” And you wouldn’t get support from conservatives, because property rights are often revered even more than gun rights themselves.

    The only way to “fix” this is to make gun carry a protected class, just like race, religion, ethic origin, etc. And we’re a LONG way away from that.

  15. “Very few gun owners want to carry openly displayed guns. The police hassle you, stores refuse to serve you and some people won’t talk to you. Criminals might even target you, seeking to steal your expensive sidearm.”

    This must happen in Texas ALL the time. We don’t want this at all (wink wink).

    Open carrying is different from brandishing there chief…

    • I can see you don’t understand California culture. What do you think would happen to you if you decided to mosey around Times Square or Central Park in NYC with a gun strapped to your hip (and no uniform)? That’s exactly what will happen–and in fact did happen–in San Diego, in San Mateo, in San Jose, and in other places where the OC crowd decided to come out of the cupboard and flaunt their freedom to bear arms. The interwebs were full of videos of the police response to calls of MWG! Some were cool, some were tense. And then there was the cop in Marin County just recently who pulled up on a kid with an airsoft AK missing its orange tip–you may remember. He told the kid to freeze, and the kid turned around to see what was what. He had a lovely funeral…Open carry in the urban areas of this State an be downright dangerous to the person carrying the gun.

      • If it’s legal, it’s legal, and the police can learn to live with it, or pay large legal settlements.

        If they kill me in their over-exuberance, my estate will have funds and instructions to sue them naked.

      • I live in NJ. I can completely understand that happening, but it happens because the media deems these things frightening, that when you see a gun you run, that a person carrying a gun the police get called. The more and more they see it and nothing happens the more they realize how they’ve been sold and the media will move on to demonize something else. I understand there’s going to be instances of improper use, and police encounters, but you don’t need to even be armed to come across these things nowadays…

    • Actually, hasn’t there been a meteorological disturbance of poop lately in Texas over Open Carry? IIRC, it’s illegal there (in spite of Texas’ reputation) and even concealed carry isn’t as easy to do there as it is my Yankee state.
      But the Open Carry thing – that’s been a campaign talking point lately in Texas.

      No offense to Texans. Just sayin’…

      • You are correct, for all its wild west reputation, Texas is actually kind of restrictive on handguns (long guns are a different story altogether, to be discussed anon). The “Open Carry” being talked about here in Texas now is apparently to be limited to people who have a concealed carry license. Basically, I guess, it would result in a kind of generalized permit that would allow you to carry a handgun either openly or concealed. Not much of an improvement, IMHO. BTW, long guns may technically be openly carried here, but it illustrates the point that the article makes–walk down the street with one and you can expect to be stopped by the local law. In some jurisdictions, notably Temple-Killeen, you face a pretty good probability of being arrested for “brandishing”, which falls under the “disorderly conduct’ statute.

  16. Remember that a majority of the people in CA, in large cities, voted for what they got. This same majority own businesses that will ban guns on the premises. What easier way to ban you if you have to show it.

  17. Conceal carry should still be the goal.Open carry although legal in our state is not a good idea.Open carriers do not have to go through ccw training so they don’t know what they Don’t know! First guy getting killed in a gun situation is the open carrier.Then every one else is open game.Conceal carriers know the laws and risks.They are societies secret police.Most people tole around in a fog so when criminal attack, they are victims.CCW er’s typically keep a vigil going on.

  18. “Open carry’s WAY too anti-social and dangerous for even gun guys.”

    Speak for yourself. If you’re not comfortable around the sight of a gun, stay home. This is fuel the gun-grabbers can use to say: “See, even gun rights advocates don’t like guns.”

    Open carry was the norm until the advent of the ‘city’

  19. “San Diego will undoubtedly appeal the [Peruta] decision [striking down the just cause” provision

    No wonder he’s teaching. With predictions like that he could never be trusted as a partner.

    That he and Volokh can be teaching in the same law school makes me think Winkler is only there to provide contrast, part of a false-silver setting for a true diamond.

  20. California law on firearms ownership and carry remains in the state of flux. The gravamen of Richards v. Prieto, currently under appeal in the Ninth Circuit Court, is whether or not the Constitution protects the carry of loaded firearms. According to the currently standing ruling in that case, under the statutory scheme, even without a CCW permit we are “still more than free to keep an unloaded weapon nearby their person, load it, and use it for self-defense in circumstances that may occur in a public setting”.

    Under California state law, a firearm is unloaded whenever it doesn’t have ammunition “placed into a position from which it can be fired”, per People v. Clark (1996) 45 Cal.App.4th 1147, 53 Cal.Rptr.2d 99. Technically, this includes any clip- or magazine-fed weapon with a loaded clip or magazine attached, but the chamber kept empty, a.k.a. the Israeli carry. I’d settle for that, but middle-class morality is bound to get affronted by exhibitionism and revert to licensed discreet carry. In the meantime, I hope and wish for the advocates of run rights to be more supportive of individual open carry protests in the future. For one thing, their part in bringing about recently enacted UOC bans saved the Ninth Circuit the bother of ruling whether or not an unloaded firearm can be “operable” within the meaning of Heller.

  21. I recall a story from a Florida town many years ago where they made concealed carry illegal (open carry was still ok). The locals were so out of joint that they began to carry the biggest guns they had to town, or two guns, or 4. The place looked like a militia camp for a couple of months and lo- before tourist season the town backed down and lifted the CCW ban.
    Perhaps this would work in California as well; flood the cities with openly carried guns until the antis simply can’t stand it anymore.

  22. Losing my CCW in CA would be a horribly bad thing for me.
    I am not looking to make a statement with my CCW, I just want to be able to protect myself and/or my family.

    I would feel more like a target if I could only open carry.
    It is a preference thing, and for me, Concealed carry is where its at.

  23. Open Carry at Peet’s. Wow! Big men there! Does it make them feel rough and manly in front of the soccer moms?

    Why don’t they try it at liquor stores, pay day loans, and Popeye’s restaurants in the Ghetto? Someplace where a crime has actually taken place as there’s never been a crime committed at Peet’s.


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