Thursday, March 7, 2013

Open Carry In North Carolina

The topic of open carry made the Off The Record blog of the Greensboro News-Record on Tuesday. It isn't often that you see a reasonable discussion of open carry in a newspaper without it being connected to some crime. In this case, it was an article by Jeff Welty of UNC's School of Government in their North Carolina Criminal Law blog that led to the posting about open carry.

As to the question of whether you as a law-abiding citizen can legally carry openly in North Carolina, the answer is generally yes. That is thanks to a 1921 case decided by the North Carolina Supreme Court.

From the Off The Record blog:
The case originated in Kernersville, where its central figure, Orah W. Kerner, was a member of the namesake family. He was “president of American Hosiery Mills, senior member of the firm of Kerner Brothers, and a large tobacco planter,” according to his 1923 obituary.

According to the Supreme Court, Kerner “was walking along the streets of the town of Kernersville in Forsyth County carrying some packages, when he was accosted, for the purpose of engaging him in a fight, by one Matthews; that in the course of this altercation he set down his packages and went to his place of business and there procured a pistol, which he brought back with him unconcealed to the scene of the altercation. Sec. 3, ch. 317, Public-Local Laws 1919, prohibits the carrying of such weapons off his own premises by any one in Forsyth without a permit, even though it was not concealed. The court, being of the opinion that this statute was in conflict with the constitutional provision that “the right to bear arms shall not be infringed,” directed a verdict of not guilty, and the State appealed.”

The Supreme Court affirmed the trial court verdict, noting the distinction between the right to keep and bear arms and the right to carry concealed weapons.

“The former is a sacred right, based upon the experience of the ages in order that the people may be accustomed to bear arms and ready to use them for the protection of their liberties or their country when occasion serves. The provision against carrying them concealed was to prevent assassinations or advantages taken by the lawless, i. e., against the abuse of the privilege.”
Open carry in North Carolina is not without constraints. One of the more common issues that comes up is what is called "going armed to the terror of the people." Professor Welty notes that it comes up when someone is intentionally trying to scare or terrorize others but "a person doesn’t commit this offense by carrying a weapon in a non-threatening and orderly manner, such as going about one’s daily business with a handgun in a hip holster."

Professor Welty says that local government can regulate, to some extent, open carry in North Carolina. For example, they could prohibit open carry in public buildings and their parking lots. However, while NC GS 160A-189 and NC GS 153A-129 allows cities and counties to regulate the display of firearms on sidewalks, streets, and other public property, Professor Welty does not believe that they could use these laws to ban open carry.
But reading the power to “regulate the display of firearms” to allow local governments to ban open carry in public is probably wrong for two reasons. First, it would be unconstitutional under Kerner. As the court noted, “[t]o exclude all pistols, however, is not a regulation, but a prohibition, of arms which come under the designation of ‘arms’ which the people are entitled to bear.” Second, such a reading ignores the fact that both statutes allow local governments to “regulate . . . or prohibit” the discharge of firearms, but only to “regulate” the display of firearms. The lack of parallelism appears to be intentional. Therefore, although the precise extent of local government authority isn’t clear, and a variety of local regulations might be permissible, a complete ban on public open carry does not appear to be.
Given that Professor Welty works for the School of Government which has as part of its mission to educate local governments on the law, there is hope that this information will filter down to local law enforcement agencies.

H/T Ken Soderstrom

1 comment:

  1. "The Supreme Court affirmed the trial court verdict, noting the distinction between the right to keep and bear arms and the right to carry concealed weapons."

    I know many states have distinctions like that, but I don't find it credible. For starters, "bearing arms" can be open or concealed. I find nothing in the language that prevents that. Second, many states clarified in their state constitutions that bearing arms for that state does not cover concealed weapons. If it didn't anyway, why the extra disclaimer?

    We need to start making the argument that carrying is carrying, open or concealed, and that both are protected by the 2nd amendment. Sounds like the 7th US Court of Appeals has a similar argument.