Robert Spitzer is the chair of the Political Science Department at SUNY Cortland, as well as the author of over a dozen books, including “The Politics of Gun Control” and “The Right to Bear Arms: Rights and Liberties Under the Law.”
“In terms of a form of protest,” he says, open carry, as a concept, “is relatively new. And by that I mean going back maybe 10 years, 15 years, something like that. I don’t think much farther than that.”
According to Spitzer, open carry exists as a legal activity largely “because of the obvious need to allow legal transportation of guns, carrying of guns from one place to another.” It was never mentioned in the Bill of Rights, and it certainly isn’t “constitutional carry,” as some Second Amendment activists have taken to calling it.
“Because it’s legal,” Spitzer says, “that translates for gun rights people as meaning that it’s protected under the Second Amendment,” which says more about the success of the gun lobby over the last four decades than it does about the intentions of the Founding Fathers.
“There’s certainly no reason to believe that there is a Second Amendment right to carry guns around openly, just for the sake of doing it,” he says. “There have always been exceptions made for carrying guns because you’re going somewhere. You know, you’re going hunting, you’re transporting a weapon for some purpose. That is going back to the 1600s. Those exceptions have always existed. But just to do it as a display or protest activity, there’s no reason to believe the Second Amendment protects that. But it is legal,” in most states.
District of Columbia v. Heller is the landmark Supreme Court ruling that struck down Washington’s gun control laws in 2008. It established for the first time that the Second Amendment guarantees an individual’s right to have arms for self-protection. This was the “judicial activism” that the conservatives have been screaming about for years — and ironically, it came from the conservatives of the Supreme Court. Before Heller, it had always been agreed that the Second Amendment was tied to militia service, but that is no longer the case. Although this might be seen as a “win” for gun rights activists, it also underscores how the Second Amendment does not preclude the kind of “commonsense” gun control that the Pittsburgh City Council is considering.
In the majority opinion, Justice Antonin Scalia pointed out that:
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Even if Pittsburgh passed gun control legislation, it would not be enforceable, Spitzer says. This is due to the state’s preemption law. “Pennsylvania has a law that says that localities may not enact regulations more strict than the existing state regulations regarding guns,” Spitzer says. That’s why Justin Dillon was able to have Erie’s gun ban overturned. And this very well might prevent the City of Pittsburgh from enforcing its own gun control legislation. But it’s one thing to mount a legal battle against policies you don’t agree with. (That’s what the Allegheny County Sportsmen’s League and Firearm Owners Against Crime are planning to do.) It’s another thing altogether to claim that these policies are a dire attack on our constitutional rights.
The former makes for a boring policy discussion. The latter is a recruiting opportunity for Second Amendment purists.