Enjoy the discussion on California’s ever evolving firearms laws and legislation. Here, we discuss the practically non existent right to carry rifles and or handguns openly, and unloaded, while not on your private property.
By Attorney Michael P. Ehline, Esq. In the past, California allowed you to transport unloaded firearms in public. But the law said your gun had to be empty. Also, prohibited areas disallowed carrying of a gun at all.
The designated prohibited areas, by these laws, included government buildings, school zones (under the California Gun Free School Zone Act), and post offices. So you could not open carry there.
What are The Recent Anti Second Amendment Open Carry Laws in CA?
However, the California “open carry” gun rights law would see drastic changes on January 1, 2012, when the California Assembly Bill 144 went into effect. This new law made it illegal to carry unloaded handguns openly.
California Penal Code Section 26350 outlines this in detail, which describes openly carrying an unloaded handgun in specific public places, is now a misdemeanor offense. But people exercising their Second Amendment right to bear arms, by lawfully carrying their firearms remained confused. The Second Amendment allegedly provides gun owners protection from being wrongfully harassed, arrested or prosecuted, for carrying a legal firearm.
So if the time comes that you find you are in trouble for legally carrying your gun, we can help you in this situation. We defend the rights of individuals accused of allegedly violating California gun laws. And we specialize in this area of the law. Plus, we have a complete understanding of the California “open carry” laws and how alleged criminal conduct in this area occurs.
Understanding the California “Open Carry” Laws
What “open carry” means is that an individual is carrying a legal firearm in plain sight. California law has never expressly authorized the ability to carry a weapon openly. Because of this, other California state laws did not prohibit carrying. But this has changed with the endorsement of California Penal Code 26350.
One crucial factor is that the new law only applies to handguns and not to rifles or shotguns. This law leaves several avenues for gun activists to have support, even with the limitations of the enactment of the law. Law abiding gun owners should have the capacity to exercise their Second Amendment right to bear arms openly.
Openly Carrying Serves Two Purposes:
- Carrying remains an effective way to prevent being a victim of a violent crime and avoid personal injury.
- Possessing a firearm is also a visual deterrent. So that way, it won’t force the gun owner to use the weapon.
Open carry laws in California did not apply to assault weapons. [liberals in the legislature think any gun that looks scary is an assault weapon]. And these are prohibited from being openly carried under Penal Code Section 12280. Also this section prohibits the possession of destructive devices.
Politics and Open Carry
In 2004 the Unloaded Open Carry (UOC), the movement began and had gained momentum over the years. There are currently 38 states that have variations of this law, and every state has UOC activists.
In the state of California, these activists often gathered in public places for “meet-ups,” which include restaurants and Starbucks in particular. When these gatherings occur, some people who openly carry will wear tape recorders.
And some others will possibly carry video recorders. In some cases, they may have a lawyer present at this gathering of enthusiasts. What they are attempting, is to passively invite an altercation with law enforcement to challenge their legal, “civil” rights in court.
These group meetings are a way to protest the California legislation that relates to concealed weapons permits by the activists. Individuals supporting open carrying of firearms say the state only issues the concealed weapons permit to “well connected” people. And they claim Sheriffs deny the applications of ordinary citizens.
Permission to Open Carry
Anyone under the age of 18, who are minors.
California says individuals who are a potential threat to themselves or other people, and individuals diagnosed with a mental disorder can’t own guns. People convicted of a felony can’t possess, own, purchase or receive firearms either. Because of this, California’s Penal Code Section 12021 spells out penalties under the “felon with firearm” law.
Back in the day, handguns, shotguns, and rifles could be openly carried. So if you were not legally barred from owning or possessing firearms you could carry.
Openly, such as in a holster
- Carrying of an unloaded magazine in the gun
So this helps to avoid the legal issue of having a concealed or partially concealed magazine. It was an illegally concealed weapon in that case. The open carry laws in California applied to weapons you carried on your person and firearms openly possessed in a vehicle or motorcycle. When passing through a school zone, you would have been required to place your weapons in a locked case. And this is how you complied with Penal Code § 12026.1.
Understanding Other Illegal Acts
Violation of the California Penal Code § 12025, “carrying a concealed weapon” law, you will have no protection by the open carry laws. Open carry is the right to carry a firearm openly in public. In specific circumstances, numerous other California gun laws will prohibit the carrying of a firearm legally. Most of all, it is important to ensure you are not violating any of these other statutes when carrying a gun.
Carrying Concealed and Loaded Weapons
What about when you are going to and from the gun range, or gunsmith, for example? California Penal Code § 12012 is the state’s code for the carrying of a concealed weapon law, and if you violate this code, then you will not be protected by the open carry laws. This is true because of open carry is the carrying of a firearm plainly and openly in public.
So you could carry the unloaded gun and ammunition separately unless you used it in a felony. But if used in a crime, your gun was deemed “loaded.” The law permitted residents to carry a loaded weapon.
But that was only in specific situations like:
In your home
- On private property
Certain businesses, in which you have at least a “possessory” interest in, can exclude others, or control the activities within. So even if a police officer stops you in a location not prohibited from opening carry a firearm, you must let them inspect your weapon. Most of all, cops inspect to assure you have an unloaded weapon. If not, the police officers have probable cause to arrest you.
California Penal Code § 417 states those compliant with the open carry laws must have unloaded weapons. In fact, it must remain visible, in a location where it is legal. Also, you may not use the gun to intimidate or threaten any person. It is likely if you pull your firearm in a threatening, angry or rude manner that prosecutors will charge you with a crime.