Say What? Attorney Claims Open Carry Is Unconstitutional

AP Photo/Ted S. Warren

South Carolina isn’t exactly a hot bed of gun control activism, and the Second Amendment is treated pretty well in state law. There’s one oddity, however, that lawmakers are hoping to address this session; a total ban on the open carrying of firearms. A bill that would allow concealed carry holders to carry either openly or concealed is expected to receive debate and a vote on the floor of the state House next week, but the public debate has already begun.


As local television station WYFF reports, you can find folks on both sides of the issue in the state. Thankfully for Second Amendment supporters the arguments against the legislation simply don’t make much sense.

“The only reason you would (open carry) is to intimidate,” said Bill Ware, a Spartanburg truck driver who grew up hunting and is a gun owner. “For those of us in fire self-defense training circles, all you’re doing by open carrying is identifying to the potential attacker who he needs to take out first.”

Ware’s point about the risks of open-carrying in terms of self-defense is a valid one, though it doesn’t mean that the government should dictate how anyone chooses to bear arms. More importantly, however, is the fact that under current South Carolina law, a concealed carry holder can be charged with a crime if they merely and accidentally expose their firearm for a moment or two. If their shirt or jacket gets caught on the gun and it’s inadvertently displayed, should they really face the prospect of a criminal record and time behind bars?

Ware’s argument isn’t a great one, but to his credit, it makes much more sense than the opposition offered by a lawyer in the state.

Civil rights attorney John Reckenbeil doesn’t see this bill surviving a constitutional challenge in court.

“Our decision we base everything on for gun laws is the Heller decision, Justice Scalia wrote before he passed away. And he literally says you don’t have the absolute right have any weapon at any time for any purpose,” said John Reckenbeil, a civil rights attorney based out of Greenville County. “Self-defense is the Second Amendment. So you’re now saying that you’ve got an open carry law, you’re going to be brandishing a weapon out in public for everyone to see. What’s the purpose of that for self-defense?”


Now, I’m not an attorney, but you don’t need to have a law degree to see the flaw in Reckenbell’s argument. Actually, before we even get to his argument let’s acknowledge the oddity of a “civil rights attorney” arguing in favor of restricting constitutional rights. It’s weird, right?

As to Reckenbell’s claims, they’re easy enough to dismiss. First off, the Heller decision is not the basis for every gun law in the country. How could it be, since Heller only established that yes, the Second Amendment protects an individual right to keep and bear arms and no, Washington D.C. couldn’t ban handgun ownership or require gun owners to store their firearms in such a way that they were not immediately accessible for self-defense?

Secondly, Heller established a floor for Second Amendment rights, not a ceiling. The Heller decision doesn’t specifically address every aspect of gun ownership, but that doesn’t mean that the right to keep and bear arms is only limited to possessing a handgun in the home. There is virtually no chance that the Supreme Court or any other court would toss out a law that allows concealed carry holders to carry openly if they choose.. at least not without completely disregarding the Constitution. Open carry is not brandishing, as Reckenbell claims. If it was, then the practice wouldn’t be legal in 45 of the 50 states. South Carolina is the outlier here, and the proposed change to South Carolina law would certainly survive a constitutional court challenge.


South Carolina’s “open carry with training” legislation is ultimately a fairly small change to state law, and should be completely uncontroversial, but gun control activists are doing their best to try to confuse and scare folks about what the law would actually do. Legislators need to call out these false claims and educate citizens on the details of the bill, and then they should give the legislation their ringing endorsement.


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