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Why gun owners should use the First Amendment to protect open carry

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The United States is a nation built upon individual rights and freedoms.

One in particular that is often fought over is the “right of the people to keep and bear arms,” or more simply put, the right to carry a firearm.

Open carry is the act of publicly carrying a firearm on one’s person in plain sight. The majority of states allow citizens to open carry a firearm without a permit.

Surprisingly, Texas is not one of those states.

{mosads}Now while this may seem shocking at first, most of these open carry states place burdensome restrictions on the act. These include location restrictions such as high schools and certain cities, state buildings, police stations, and shopping malls. With all these restrictions, open carry isn’t as permissible as it sounds.


The First Amendment has historically been much more difficult to limit than the Second, so extending Freedom of Speech to encompass the open display of firearms needs to be addressed. The case for open carrying being protected under the First Amendment can be made through symbolic speech.

The United States Supreme Court has answered the issue of firearms being protected by the Second Amendment through DC v. Heller (2008) and McDonald v. Chicago (2010). In regards to open carry from a legal perspective, we must look to the state laws rather than the Constitution.

However, there has been no Supreme Court case deciding whether or not the act of open carrying is protected by the First Amendment.

Open carrying a firearm is an action; it is symbolic speech because it is a public statement. As history has shown us, actions and public statements, are protected by the First Amendment under symbolic speech. Examples of this include students in Des Moines wearing armbands to protest the Vietnam War, waving flags that may be seen as offensive and even flag burning.

Symbolic speech relies heavily on the context within which it occurs.

According to Delaware’s leading Open Carry organization, “self-defense is the foremost reason for open carry.”Another leading reason as to why law abiding citizens open carry firearms is for educational purposes.

People want to bring attention to the fact that they have the right to bear arms and that they can legally and safely exercise that right.

While some people may see open carrying as alarming, it was ruled in the Supreme Court Case, Brandenburg v. Ohio (1969), that distressing speech is protected as long as it does not call for “imminent lawless action.”

Considering that law abiding citizens are carrying for either self-defense or educational purposes, open carrying does not qualify as imminent lawless action.

Due to open carrying being an action in the form of a public statement for self-defense and educational purposes that do not call for imminent lawless action, a strong case can be made for its protection under symbolic speech through the First Amendment.

Tyler Yzaguirre is the co-founder and president of the Second Amendment Institute, which promotes gun rights through education and activism. Follow him on Twitter @tyleryz3

The views expressed by contributors are their own and are not the views of The Hill.

Tags Constitution District of Columbia v. Heller first amendment Gun control Guns open carry Second Amendment

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