BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

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          AB 144 (Portantino)                                         
          As Amended  June 1, 2011 
          Hearing date:  June 7, 2011
          Business and Professions Code and 
          Penal Code
          SM:dl

                          OPEN CARRYING OF UNLOADED HANDGUNS  

                                       HISTORY

          Source:  California Police Chiefs Association  

          Prior Legislation: AB 1934 (Saldana) - 2010, died on Assembly 
          Concurrence
                       AB 98 (Cohn) - 2005, held on Suspense in Assembly 
          Appropriations
                       AB 2501(Horton) - 2004, failed passage in Assembly 
          Public Safety
                       AB 2828 (Cohn) - 2004, failed passage in Assembly 
          Public Safety

          Support: Brady Campaign to Prevent Gun Violence (California 
                   Chapters); City of Beverly Hills; City of Los Angeles; 
                   City of West Hollywood; Coalition Against Gun Violence; 
                   Friends Committee on Legislation; Legal Community 
                   Against Violence; Los Angeles Sheriff's Department; 
                   Peace Officers Research Association of California 
                   (PORAC); over 200 individual citizens 

          Opposition:California Rifle and Pistol Association; Capitol 
                   Resource Family Impact; Diablo Valley Gun Works; Gun 
                   Owners of California; National Rifle Association; 




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                   Responsible Citizens of California; 20 individual 
                   citizens

          Assembly Floor Vote:  Ayes  46 - Noes  29

                                           
                                     KEY ISSUES
           
          SHOULD IT BE A MISDEMEANOR PUNISHABLE BY UP TO SIX MONTHS IN 
          COUNTY JAIL AND A $1,000 FINE TO OPENLY CARRY AN UNLOADED 
          HANDGUN ON ONE'S PERSON OR IN A VEHICLE?
                                                                 
          (Continued)




          SHOULD IT BE A MISDEMEANOR PUNISHABLE BY UP TO ONE YEAR IN COUNTY 
          JAIL AND A $1,000 FINE TO OPENLY CARRY AN UNLAWFULLY POSSESSED 
          UNLOADED HANDGUN AND AMMUNITION IN PUBLIC IN AN INCORPORATED CITY?

          SHOULD SPECIFIED EXCEPTIONS TO THIS PROHIBITION BE ESTABLISHED?

          SHOULD IT BE A MISDEMEANOR, PUNISHABLE BY UP TO SIX MONTHS IN JAIL 
          AND A FINE OF UP TO $1,000 FOR THE DRIVER OF A VEHICLE TO KNOWINGLY 
          ALLOW A PERSON TO BRING AN OPENLY CARRIED, UNLOADED HANDGUN INTO THE 
          VEHICLE?
           

                                       PURPOSE

          The purpose of this bill is to (1) make it a misdemeanor 
          punishable by up to 6 months in jail and a $1,000 fine to openly 
          carry an unloaded handgun on one's person or in a vehicle; (2) 
          make it a misdemeanor punishable by up to one year in county 
          jail and a $1,000 fine to openly carry an unlawfully possessed 
          unloaded handgun and ammunition in public in an incorporated 
          city; (3) establish specified exceptions to this prohibition; 
          (4) make it a misdemeanor, punishable by up to six months in 
          jail and a fine of up to $1,000 for the driver of a vehicle to 




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          knowingly allow a person to bring an openly carried, unloaded 
          handgun into the vehicle; and (5) make conforming and 
          nonsubstantive technical changes to affected statutes.

          Existing law  defines "handgun" as any "pistol," "revolver," or 
          "firearm capable of being concealed upon the person."  (Penal 
          Code § 16640(a).)<1>

           Existing law  prohibits carrying a concealed weapon, loaded or 
          unloaded, unless granted a permit to do so.  Except as otherwise 
          provided, a person is guilty of carrying a concealed firearm 
          when he or she:

                 Carries concealed within any vehicle which is under his 
               or her control or direction any pistol, revolver, or other 
               firearm capable of being concealed upon the person;
                 Causes to be concealed within any vehicle in which the 
               person is an occupant any pistol, revolver, or other 
               firearm capable of being concealed upon the person; or,
                 Carries concealed upon his or her person any pistol, 
               revolver, or other firearm capable of being concealed upon 
               the person.  (Penal Code § 25400(a).)

           Existing law  provides that carrying a concealed firearm is 
          generally a misdemeanor, punishable by up to one year in a 
          county jail; by a fine of up to $1,000; or both.  However, there 
          are several circumstances in which carrying a concealed weapon 
          may be punishable as a felony or alternate felony-misdemeanor:

                 A felony where the person has previously been convicted 
               of any felony or of any crime made punishable by the 
               Dangerous Weapons Control Law;
                 A felony where the firearm is stolen and the person 
               knew, or had reasonable cause to believe, that the firearm 
             --------------------------
          <1> SB 1080, Chap. 711, Stats. 2010, and SB 1115, Chap. 178, 
          Stats. 2010, recast and renumbered most statutes relating to 
          deadly weapons without any substantive change to those statutes. 
           Those changes will become operative January 1, 2012.  All 
          references to affected code sections will be to the revised 
          version unless otherwise indicated.



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               was stolen;
                 A felony where the person is an active participant in a 
               criminal street gang;
                 A felony where the person is not in lawful possession of 
               the firearm, as defined, or the person is within a class of 
               persons prohibited from possessing or acquiring a firearm;
                 An alternate felony-misdemeanor where the person has 
               been convicted of a crime against a person or property or 
               of a narcotics or dangerous drug violation; and,
                 An alternate felony-misdemeanor where:
               o      Both the concealable firearm and the unexpended 
                 ammunition for that firearm are either in the immediate 
                 possession of the person or readily available to that 
                 person or where the firearm is loaded; and,
               o      The person is not listed with the Department of 
                 Justice (DOJ) as the registered owner of the firearm.  
                 (Penal Code § 25400(c).)

           Existing law  provides a number of exceptions and limitations to 
          the prohibition on carrying a concealed firearm including 
          methods to lawfully carry firearms in a vehicle, a home, or a 
          business, etc.  (Penal Code §§ 25600, 25605, 25610, 25505-25595, 
          25450-25475, 25615-25655, and 26150-26255.)

           Existing law  authorizes the sheriff of a county, or the chief or 
          other head of a municipal police department of any city or city 
          and county, upon proof that the person applying is of good moral 
          character, that good cause exists for the issuance, and that the 
          person applying satisfies any one of specified conditions, and 
          has completed a course of training, as specified, to issue to 
          that person a license to carry a pistol, revolver, or other 
          firearm capable of being concealed upon the person in either one 
          of the following formats:

                 A license to carry concealed a pistol, revolver, or 
               other firearm capable of being concealed upon the person.
                 Where the population of the county is less than 200,000 
               persons according to the most recent federal decennial 
               census, a license to carry loaded and exposed in only that 
               county a pistol, revolver, or other firearm capable of 




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               being concealed upon the person.

          (Pen Code § 26150-26255.)

           Existing law  prohibits the carrying of a loaded firearm on his 
          or her person or in a vehicle while in any public place or on 
          any public street in an incorporated city or a prohibited area 
          of unincorporated territory.  The penalty provisions for this 
          prohibition are substantially similar to those provided in Penal 
          Code Section 25400(c) and provide numerous exceptions and 
          limitation to this prohibition.  (Penal Code § 25850.) 

           Existing law  provides that a firearm shall be deemed to be 
          loaded for the purposes of Penal Code Section 12031 when there 
          is an unexpended cartridge or shell, consisting of a case that 
          holds a charge of powder and a bullet or shot, in, or attached 
          in any manner to, the firearm, including, but not limited to, in 
          the firing chamber, magazine, or clip thereof attached to the 
          firearm; except that a muzzle-loader firearm shall be deemed to 
          be loaded when it is capped or primed and has a powder charge 
          and ball or shot in the barrel or cylinder.  (Penal Code § 
          16840(b).)

           Existing law  provides in the Fish and Game Code that it is 
          unlawful to possess a loaded rifle or shotgun in any vehicle or 
          conveyance or its attachments which is standing on or along or 
          is being driven on or along any public highway or other way open 
          to the public.  (Fish and Game Code § 2006.)

           Existing law  provides that a rifle or shotgun shall be deemed to 
          be loaded for the purposes of this section when there is an 
          unexpended cartridge or shell in the firing chamber but not when 
          the only cartridges or shells are in the magazine.  (Id.)

           Existing law  provides that carrying a loaded firearm is 
          generally a misdemeanor, punishable by up to one year in a 
          county jail; by a fine of up to $1,000; or both.  However, there 
          are several circumstances in which the penalty may be punishable 
          as a felony or alternate felony-misdemeanor:





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                 A felony where the person has previously been convicted 
               of any felony or of any crime made punishable by the 
               Dangerous Weapons Control Law;
                 A felony where the firearm is stolen and the person knew 
               or had reasonable cause to believe that the firearm was 
               stolen ;
                 A felony where the person is an active participant in a 
               criminal street gang;
                 A felony where the person is not in lawful possession of 
               the firearm, as defined, or the person is within a class of 
               persons prohibited from possessing or acquiring a firearm;
                 An alternate felony-misdemeanor punishable by 
               imprisonment in the state prison; by imprisonment in a 
               county jail not to exceed one year; by a fine not to exceed 
               $1,000; or by both that imprisonment and fine where the 
               person has been convicted of a crime against a person or 
               property or of a narcotics or dangerous drug violation.
                 An alternate felony-misdemeanor punishable by 
               imprisonment in the state prison; by imprisonment in a 
               county jail not to exceed one year; by a fine not to exceed 
               $1,000; or by both that imprisonment and fine where the 
               person is not listed with the DOJ as the registered owner 
               of the firearm.  

          (Penal Code § 25858(c).)
           Existing law  , the "Gun-Free School Zone Act," prohibits a 
          person, without appropriate permission, as specified, from 
          possessing a firearm within an area that the person knew or 
          reasonably should have known was a "school zone," defined as an 
          area in or on the grounds of or within 1,000 feet of the grounds 
          of any public or private K-12 school.  (Penal Code § 626.9.)

           Existing law  provides that any person who has ever been 
          convicted of a felony and who owns or has in his or her 
          possession or under his or her custody or control a firearm is 
          guilty of a felony, punishable by 16 months, 2 or 3 years in 
          prison.  (Penal Code § 29800(b).)

           Existing law  provides that every person who, except in 
          self-defense, draws or exhibits any firearm in public, loaded or 




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          unloaded, in the presence of another person, in a rude, angry or 
          threatening manner is guilty of a misdemeanor and shall be 
          imprisoned for not less than three months nor more than one year 
          in the county jail; fined $1,000; or both.  (Penal Code § 
          417(a).)

           Existing law  provides that every person who, except in 
          self-defense, draws or exhibits any firearm, loaded or unloaded, 
          in a rude, angry or threatening manner in public, in the 
          presence of a peace officer, who a reasonable person would know 
          was in the performance of his or her duty, is guilty of an 
          alternate misdemeanor/felony and shall be imprisoned for not 
          less than nine months and up to one year in the county jail or 
          in the state prison for 16 months, 2 or 3 years.  (Penal Code § 
          417(c).)
          
           This bill  provides that it shall be a misdemeanor, punishable by 
          up to 6 months in the county jail, a fine of up to $1,000, or 
          both, for any person to carry an exposed and unloaded handgun 
          outside a vehicle upon his or her person or inside or on a 
          vehicle, whether or not on his or her person, while in:

                 A public place or public street in an incorporated city 
               or city and county.
                 A public street in a prohibited area of an 
               unincorporated area of a county or city and county.
                 A public place in a prohibited area of a county or city 
               and county.

           This bill  provides that it shall be a misdemeanor punishable by 
          imprisonment in a county jail for up to one year, a fine of up 
          to $1,000, or both, for any person to carry an exposed and 
          unloaded handgun inside or on a vehicle, whether or not on his 
          or her person, while in a public place or public street in an 
          incorporated city or city and county is, if both of the 
          following conditions exist:

                 The handgun and unexpended ammunition capable of being 
               discharged from that handgun are in the immediate 
               possession of that person.




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                 The person is not in lawful possession of that handgun.

           This bill  provides that the above-stated provisions shall not 
          preclude prosecution under any other law with a penalty that is 
          greater.

           This bill  provides that the above-stated provisions are 
          cumulative, and shall not be construed as restricting the 
          application of any other law.  However, an act or omission 
          punishable in different ways by different provisions of law 
          shall not be punished under more than one provision.

           This bill  provides that, notwithstanding the fact that the term 
          "an unloaded handgun" is used in this section, each handgun 
          shall constitute a separate and distinct offense.

           This bill  provides that the crime of openly carrying an unloaded 
          handgun does not apply to, or affect, the following:

                           The open carrying of an unloaded handgun by 
                    any peace officer or by an honorably retired peace 
                    officer authorized to carry a handgun, as specified;
                           The open carrying of an unloaded handgun by 
                    any person authorized to openly carry a loaded 
                    handgun, as specified;
                           The open carrying of an unloaded handgun as 
                    merchandise by a person who is engaged in the business 
                    of manufacturing, wholesaling, repairing or dealing in 
                    firearms and who is licensed to engaged in that 
                    business or an authorized representative of that 
                    business;
                           The open carrying of an unloaded handgun by 
                    duly authorized military or civil organizations while 
                    parading, or the members thereof when at the meeting 
                    places of their respective organizations;
                           The open carrying of an unloaded handgun upon 
                    the person by a member of any club or organization 
                    organized for the purpose of practicing shooting at 
                    targets upon established target ranges, whether public 
                    or private, while the members are using handguns upon 




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                    the target ranges or incident to the use of a handgun 
                    at that target range;
                           The open carrying of an unloaded handgun by a 
                    licensed hunter while engaged in lawful hunting;
                           The open carrying of an unloaded handgun 
                    incident to transportation of a handgun by a person 
                    operating a licensed common carrier or an authorized 
                    agent or employee thereof when transported in 
                    conformance with applicable federal law;
                           The open carrying of an unloaded handgun by a 
                    member of an organization chartered by the Congress of 
                    the United States or nonprofit mutual or public 
                    benefit corporation organized and recognized as a 
                    nonprofit tax-exempt organization by the Internal 
                    Revenue Service while an official parade duty or 
                    ceremonial occasions of that organization;
                           The open carrying of an unloaded handgun upon 
                    the person within a gun show, as specified;
                           The open carrying of an unloaded handgun 
                    within a school zone, as defined, with the written 
                    permission of the school district superintendent, his 
                    or her designee, or equivalent school authority;
                           The open carrying of an unloaded handgun when 
                    in accordance with the provisions relating to the 
                    possession of a weapon in a public building or State 
                    Capitol;
                           The open carrying of an unloaded handgun by 
                    any person while engaged in the act of making or 
                    attempting to make a lawful arrest;
                           The open carrying of an unloaded handgun 
                    incident to loaning, selling, or transferring the 
                    same, as specified, so long as that handgun is 
                    possessed within private property and the possession 
                    and carrying is with the permission of the owner or 
                    lessee of that private property;
                           The open carrying of an unloaded handgun by a 
                    person engaged in firearms-related activities, while 
                    on the premises of a fixed place of business which is 
                    licensed to conduct and conducts, as a regular course 
                    of its business, activities related to the sale, 




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                    making, repair, transfer, pawn, or the use of 
                    firearms, or related to firearms training;
                           The open carrying of an unloaded handgun by an 
                    authorized participant in, or an authorized employee 
                    or agent of a supplier of firearms for, a motion 
                    picture, television, or video production or 
                    entertainment event when the participant lawfully uses 
                    the handgun as part of that production or event or 
                    while rehearsing or practicing, or while the 
                    participant or authorized employee or agent is at that 
                    production event or rehearsal or practice;
                           The open carrying of an unloaded handgun upon 
                    the person incident to obtaining an identification 
                    number or mark assigned for that handgun from the 
                    Department of Justice (DOJ);
                           The open carrying of an unloaded handgun upon 
                    the person at any established target range, whether 
                    public or private, while the person is using the 
                    handgun upon the target range.
                           The open carrying of an unloaded handgun by a 
                    person when that person is summoned by a peace officer 
                    to assist in making arrests or preserving the peace 
                    while he or she is actually engaged in assisting that 
                    officer; 
                           The open carrying of an unloaded handgun upon 
                    the person incident to any of the following:

                       o              Complying with requirements for 
                         importing that handgun or curio or relic into 
                         California;
                       o              Reporting disposition of a handgun 
                         to DOJ, as specified;
                       o              The sale or transfer of that firearm 
                         to a government entity, as specified;
                       o              Complying with requirements related 
                         to the transfer of a handgun obtained by gift or 
                         inheritance;
                       o              Complying with requirements for 
                         taking possession or title of that handgun;





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                           The open carrying of an unloaded handgun 
                    incident to a private party transfer through a 
                    licensed firearms dealer;
                           The open carrying of an unloaded handgun by a 
                    person in the scope and course of training by an 
                    individual to become a sworn peace officer;
                           The open carrying of an unloaded handgun in 
                    the course and scope of training to in order to be 
                    licensed to carry a concealed weapon;
                           The open carrying of an unloaded handgun at 
                    the request of a sheriff or chief or other head of a 
                    municipal police department;
                           The open carrying of an unloaded handgun upon 
                                                                the person within a place of business, within a place 
                    of residence, or on private property if done with the 
                    permission of the owner or lawful possessor of the 
                    property;
                           The open carrying of an unloaded handgun upon 
                    the person when all of the following conditions are 
                    satisfied:

                       o              The open carrying occurs at an 
                         auction or similar event of a nonprofit or mutual 
                         benefit corporation event where firearms are 
                         auctioned or otherwise sold to fund activities.
                       o              The unloaded handgun is to be 
                         auctioned or otherwise sold for the nonprofit 
                         public benefit mutual benefit corporation.
                       o              The unloaded handgun is delivered by 
                         a licensed dealer.

                           The open carrying of an unloaded handgun by a 
                    person authorized to carry a handgun in the State 
                    Capitol or residences of the Governor or other 
                    constitutional officers;
                           The open carrying of an unloaded handgun by 
                    authorized public transit officials, as specified;
                           The open carrying of an unloaded handgun on 
                    publicly owned land, if the possession and use of a 
                    handgun is specifically permitted by the managing 




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                    agency of the land and the person carrying the handgun 
                    is in lawful possession of that handgun;
                           The carrying of an unloaded handgun if the 
                    handgun is carried either in the locked trunk of a 
                    motor vehicle or in a locked container.

           This bill  provides that the "Gun Free School Zones Act" 
          described above does not apply to or affect the following 
          persons:

                 A security guard authorized to openly carry an unloaded 
               handgun pursuant to the provisions of this bill;
                 An honorably retired peace officer authorized to openly 
               carry an unloaded handgun pursuant to the provisions of 
               this bill.

           This bill  provides that it shall be a misdemeanor, punishable by 
          up to 6 months in county jail, a fine of up to $1,000, or both, 
          for a driver of any motor vehicle or the owner of any motor 
          vehicle, whether or not the owner of the vehicle is occupying 
          the vehicle, to knowingly permit any other person to carry into 
          or bring into the vehicle an openly carried unloaded handgun, as 
          specified. 

           This bill  makes conforming and nonsubstantive technical changes.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           As these cases have progressed, prison conditions have 
          continued to be assailed, and the scrutiny of the federal courts 
          over California's prisons has intensified.  

          On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  In December of 2006, 




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          plaintiffs in two federal lawsuits against CDCR sought a 
          court-ordered limit on the prison population pursuant to the 
          federal Prison Litigation Reform Act.  On January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On May 23, 2011, the United States Supreme Court upheld the 
          decision of the three-judge panel in its entirety, giving 
          California two years from the date of its ruling to reduce its 
          prison population to 137.5 percent of design capacity, subject 
          to the right of the state to seek modifications in appropriate 
          circumstances.  
            
          In response to the unresolved prison capacity crisis, in early 
          2007 the Senate Committee on Public Safety began holding 
          legislative proposals which could further exacerbate prison 
          overcrowding through new or expanded felony prosecutions.     

           This bill  does not appear to aggravate the prison overcrowding 
          crisis described above.

                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

               The absence of a prohibition on "open carry" has 
               created an increase in problematic instances of guns 
               carried in public, alarming unsuspecting individuals 
               and causing issues for law enforcement. Simply put, 
               open carry creates a potentially dangerous situation 
               for the Citizens of California.  

               Often, when an individual is openly carrying a 
               firearm, law enforcement is called to the scene with 
               few details other than one or more armed individuals 




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               are present at a location.

               In these tense situations, the slightest wrong move by 
               the gun-carrier could be construed as threatening by 
               the responding officer, who may feel compelled to 
               respond in a manner that could be lethal. In this 
               situation the practice of "open carry" creates an 
               unsafe environment for all parties involved; the 
               officer, the gun-carrying individual, and for any 
               other people who happen to be in the line of fire.

               Additionally, the increase in "open carry" calls 
               placed to law enforcement has taxed departments 
               dealing with under-staffing and cutbacks due to the 
               current fiscal climate in California, preventing them 
               from protecting the public in other ways.

          2.  Background - The "Open Carry Movement" in California  

          California has some of the nation's strictest regulations 
          regarding gun ownership.  One practice that has remained 
          unregulated is carrying an unconcealed, unloaded handgun.  In 
          2004 and 2005, and then again last year there were unsuccessful 
          attempts to prohibit this practice.  (AB 2828 (Cohn) (2004); AB 
          2501 (Horton) (2004); AB 98 (Cohn) (2005), AB 1934 (Saldana) 
          (2010).)  A new movement to promote the open carrying of 
          firearms in California and around the country has heightened 
          debate around the issue, as reported in the New York Times:

               For years, being able to carry a concealed handgun has 
               been a sacred right for many gun enthusiasts.  In 
               defending it, Charlton Heston, the actor and former 
               president of the National Rifle Association, used to 
               say that the flock is safer when the wolves cannot 
               tell the difference between the lions and the lambs. 
               But a grass-roots effort among some gun rights 
               advocates is shifting attention to a different goal: 
               exercising the right to carry unconcealed weapons in 
               the 38 or more states that have so-called open-carry 
               laws allowing guns to be carried in public view with 




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               little or no restrictions.  The movement is not only 
               raising alarm among gun control proponents but also 
               exposing rifts among gun rights advocates. 

               The call for gun owners to carry their guns openly in 
               the normal course of business first drew broad 
               attention last summer, when opponents of the Obama 
               administration's health care overhaul began appearing 
               at town-hall-style meetings wearing sidearms.  But in 
               recent weeks, the practice has expanded as gun owners 
               in California and other states that allow guns to be 
               openly carried have tested the law by showing up at 
               so-called meet-ups, in which gun owners appear at 
               Starbucks, pizza parlors and other businesses openly 
               bearing their weapons. 
               "Our point is to do the same thing that concealed 
               carriers do," said Mike Stollenwerk, a co-founder of 
               OpenCarry.org, which serves as a national forum. 
               "We're just taking off our jackets." 

               The goal, at least in part, is to make the case for 
               liberalized concealed weapon laws by demonstrating how 
               uncomfortable many people are with publicly displayed 
               guns.  The tactic has startled many business owners 
               like Peet's Coffee and Tea and California Pizza 
               Kitchen, which forbid guns at their establishments. So 
               far, Starbucks has resisted doing the same.  (Locked, 
               Loaded, and Ready to Caffeinate, New York Times, March 
               7, 2010.  
               http://www.nytimes.com/2010/03/08/us/08guns.html?pagewa
               nted=print.) 

          3.  Is Banning Open Carrying of Handguns Unconstitutional?  

          The Second Amendment to the United States Constitution states, 
          "A well-regulated militia, being necessary to the security of a 
          free state, the right of the people to keep and bear arms, shall 
          not be infringed".  (U.S. Const., Second Amend.)  For many 
          years, courts have wrestled with the question of whether the 
          Second Amendment protects the individual's right to own a 




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          weapon.  In United States vs. Cruikshank (1875) 92 U.S. 542, the 
          Supreme Court held that the Second Amendment guaranteed states 
          the right to maintain militias but did not guarantee to 
          individuals the right to possess guns.  Subsequently, in United 
          States vs. Miller (1939), the Court upheld a federal law banning 
          the interstate transportation of certain firearms.  Miller, who 
          had been arrested for transporting a double-barreled sawed-off 
          shotgun from Oklahoma to Arkansas, claimed the law was a 
          violation of the Second Amendment.  

          The Court rejected Miller's argument, stating: 

               In the absence of any evidence tending to show that 
               possession or use of a "shotgun having a barrel of 
               less than eighteen inches in length" at this time has 
               some reasonable relationship to the preservation or 
               efficiency of a well regulated militia, we cannot say 
               that the Second Amendment guarantees the right to keep 
               and bear such an instrument.  Certainly it is not 
               within judicial notice that this 
               weapon is any part of the ordinary military equipment 
               or that its use could contribute to the common 
               defense.  (United States v. Miller, 307 U.S. 174, 178 
               (1939).)

               For many years following the Supreme Court's decision 
               in United States vs. Miller, the orthodox opinion 
               among academics and federal appeals courts alike was 
               that the Second Amendment to the United States 
               Constitution did not protect possession of firearms 
               unrelated to service in the lawfully established 
               militia.  (Merkel, Parker v. District of Columbia and 
               the Hollowness of the Originalist Claims to Principled 
               Neutrality, 18 Geo. Mason U. Civil Right L. Journal, 
               251, 251.)

          That changed in June 2008, when the United States Supreme Court 
          ruled in District of Columbia vs. Heller that a District of 
          Columbia complete ban on possession of a handgun in the home was 
          an unconstitutional violation of the Second Amendment.  




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          (District of Columbia v. Heller (2008) 128 S. Ct. 2783, 2797.)  
          After a lengthy discussion of the historical context and meaning 
          of the Second Amendment, the Court stated:  
           
               Putting all of these textual elements together, we 
               find that they guarantee the individual right to 
               possess and carry weapons in case of confrontation.  
               This meaning is strongly confirmed by the historical 
               background of the Second Amendment.  We look to this 
               because it has always been widely understood that the 
               Second Amendment, like the First and Fourth 
               Amendments, codified a pre-existing right.  The very 
               text of the Second Amendment implicitly recognizes the 
               pre-existence of the right and declares only that it 
               'shall not be infringed.'  As we said in United States 
               v. Cruikshank Ýcitation omitted] 'Ýt]his is not a 
               right granted by the Constitution.  Neither is it in 
               any manner dependent upon that instrument for its 
               existence.  The Second Amendment declares that it 
               shall not be infringed ...' "  (Heller at 2797.)

          However, in the Heller decision, the Supreme Court also 
          stated:

               Like most rights, the right secured by the Second 
               Amendment is not unlimited. From Blackstone through 
               the 19th-century cases, commentators and courts 
               routinely explained that the right was not a right to 
               keep and carry any weapon whatsoever in any manner 
               whatsoever and for whatever purpose.  For example, the 
               majority of the 19th-century courts to consider the 
               question held that prohibitions on carrying concealed 
               weapons were lawful under the Second Amendment or 
               state analogues.  Although we do not undertake an 
               exhaustive historical analysis today of the full scope 
               of the Second Amendment, nothing in our opinion should 
               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 




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               schools and government buildings, or laws imposing 
               conditions and qualifications on the commercial sale 
               of arms. n26

               FOOTNOTES
               n26 We identify these presumptively lawful regulatory 
               measures only as examples; our list does not purport 
               to be exhaustive.  (District of Columbia v. Heller, 
               128 S. Ct. 2783, 2816-2817 (2008), citations omitted.)



































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          Therefore, while the Heller decision established that the right 
          to own a firearm is a personal right, not one limited to 
          ownership while serving in a "well-regulated militia," it also 
          held that the government may place reasonable restrictions on 
          that right such as restricting "carrying firearms in sensitive 
          places."  It is not clear whether the Supreme Court would 
          include in its list of lawful regulatory measures prohibiting 
          the open carrying of unloaded handguns in public.

          IS A BAN ON OPEN CARRYING OF HANDGUNS IN PUBLIC CONSTITUTIONAL?

          4.  Arguments in Support  

          The Peace Officer Research Association of California states:

               The practice by individuals and organizations to 
               "openly carry" firearms in public places in order to 
               challenge law enforcement and firearm statutes in 
               California is increasing in frequency.  While PORAC 
               understands that most of these open carry 
               demonstrations are being done by law abiding citizens, 
               it places law enforcement and the public in a 
               precarious and possibly dangerous situation.  Most 
               often, law enforcement is called to the scene based on 
               a citizen or merchant complaint.  When the officer 
               arrives at the scene, it is their obligation to 
               question those persons carrying the firearms and to 
               inquire as to whether the firearm is loaded.  Until 
               that officer has physically seen if the firearm is 
               loaded, that officer must assume that their lives and 
               the lives of those around them may be in danger.

               Again, these situations are potentially dangerous and 
               should not occur in a public place wherein any number 
               of things could go wrong.  We believe this bill will 
               be very helpful in preventing these potentially unsafe 
               incidents from happening.





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          5.  Arguments in Opposition  

          The National Rifle Association and the California Rifle and 
          Pistol Association state:

               By denying individuals the ability to carry an 
               unloaded firearm, SB 144 directly violates the 
               constitutional right to keep and bear arms for 
               self-defense. We urge you to oppose this attack on the 
               rights of the law abiding population to carry a 
               firearm in case of a self-defense emergency should 
               they so choose.
               In addition, we write to notify you that the problems 
               facing SB 144 are compounded by the current state of 
               California's concealed carry weapons (CCW) permitting 
               system. Should AB 144 pass, it will wreak havoc on 
               California's CCW permitting system. In most areas of 
               California, CCW permits are rarely issued, and are 
               usually reserved for those with political clout and 
               the wealthy elite. Because of this reality, "open 
               carrying" is the only method available to the 
               overwhelming majority of law-abiding individuals who 
               wish to carry a firearm for self-defense. Accordingly, 
               by banning the open carrying of even unloaded 
               firearms, SB 144 effectively shuts the door on the 
               ability of law-abiding Californians to carry a firearm 
               for self-defense at all.


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