Many of you are aware that Legal Heat has spent the last 6 months fighting with the Illinois State Police to obtain our Illinois Instructor certification (as non-Illinois residents we had a much harder time, an ISP is as helpful and transparent as one might imagine). The good news is we have obtained our certifications and have already began instructing Illinois permit classes. Our first class was last weekend at the Hoffman Estates Cabelas store, and our next class at that location will be on March 13, 2014 (click here to read more about that upcoming class). The class was s great success and we’re thankful for those that attended, some of whom waited several months for us. Here are some photos from that class, make sure to let your friends and family know about our March 13th class so they can signup before it fills! Thanks again to all those who attended our inaugural course, we’re looking forward to helping Illinois residents obtain their permits for many years to come!

We had a great group, many of whom had waited several months for Legal Heat to obtain our certifications. We're also very thankful to Cabela's for working with us to offer these courses.

We had a great group, many of whom had waited several months for Legal Heat to obtain our certifications. We’re also very thankful to Cabela’s for working with us to offer these courses.

photo 2-2 photo 3 photo 4-2

Legal Heat instructor and Glock aficionado Dustin recently made a fantastic series of videos that cover how to completely disassemble a Glock, disassemble a Glock Mag, and reassemble them both. For an M&P guy like me who happens to own a few Glocks (but is far from a Glock armorer), these videos were the best I’ve ever seen. This is one you’ll want to keep bookmarked for that special time at 2am when you’ve got a reassembled Glock, and 3 extra Glock pieces laying on your workbench!

 

 

If you feel a little downtrodden with regards to the Second Amendment lately, take a look at the below graphic and take comfort in knowing our Second Amendment rights have expanded dramatically in the past 20 years. Legal Heat is now approaching the 100,000 landmark for students who we’ve helped obtain concealed firearm permits. Our nation has a LONG way to go and Legal Heat will continue our mission to “Arm America”, but we should all take heart in realizing we’ve come an incredibly long way in a short amount of time. Here’s to seeing more green states and less yellow state in the next few years!

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As most of you are aware, Legal Heat travels the country each month certifying thousands of people to obtain their concealed firearm permits. One of the most common questions we get asked in our classes is, “what is the best concealed carry insurance/legal protection product?” As a result of all of these inquiries, Legal Heat has been on a quest to find the best firearm defense liability insurance/protection in the business. We don’t take the endorsement of products lightly, and so we wanted to make absolutely sure we vetted each option as best we could. Since November I have spoken with or met with nearly every major provider of firearm liability protection in America. They all have their merits, but for us there is one clear industry leader, CCW Safe.

TO LEARN MORE OR ENROLL IN CCW SAFE PROTECTION CLICK HERE

First let’s discuss what firearm defense protection is all about.

If you are involved in a self-defense shooting your first priority is survival. Once survival is secured,  not having your life destroyed by an unbelievably expensive and emotionally draining legal battle now becomes your priority. That is where liability protection comes in. You pay a monthly or annual premium and gain the peace of mind of knowing you’ll be more financially secure and legally protected should such need arise. In the liability protection world there are two options, insurance products and service products.

Insurance Products:

Many of the insurance products currently available sound great on the surface, until you read the fine print and discover that (for many) you must first use your own money to hire an attorney, then afterwards submit your claim to the insurance company for reimbursement.  Not only is it extremely discomforting to imagine the insurance company denying your claim, it is also economically impossible for most people to come up with the funds required to hire an attorney in the first place. George Zimmerman’s legal defense cost 2.5 million dollars. If you were in Zimmerman’s position and had purchased many of the insurance products out there, you would could have been required to front the 2.5 million dollars and then later on submit your claim for reimbursement. I don’t know about you, but I personally question my ability to raise $25,000 overnight, let alone 2.5 million. Another huge downfall of insurance products is many have claim limits.  Self-defense criminal cases can cost much more than most people imagine. When you walk into an attorney’s office and he tells you your case may run into the hundreds of thousands, you don’t want to worry about claim limits. For all these reasons and more, we have decided to personally (and professionally) choose the service product offered by CCW Safe over competing insurance options. Although we’ve chosen to purchase CCW Safe coverage, I want to make it abundantly clear that we are not saying competing products (such as those offered by our industry friends USCCA or the NRA) are bad. USCCA and the NRA are great organizations, we simply feel CCW Safe provides the most protection and best value for our needs. It should also be noted that there is nothing that prevents you from obtaining multiple protection plans (CCW Safe & USCCA Law Shield), there’s no such thing as too much protection.

Service Product (CCW Safe):

As opposed to many insurance products, CCW Safe does not require you to front the costs of your legal defense and has no claim limits. CCW Safe also covers the costs of investigators and expert witnesses (which many of the competitors do not). Additionally, one of the best benefits of CCW Safe is their emergency hotline. In the wake of a self-defense shooting, all you need to do is make one call to CCW Safe’s emergency hotline and they’ll take care of the rest. They will quickly arrange legal counsel, investigators, and expert witnesses who will go to bat for you. As a former prosecutor myself, I can tell you the quicker a defendant has an attorney, the better. Those who spend weeks trying to find the right attorney waste crucial time and risk getting swallowed alive by the legal system. In a self-defense shooting you need a good attorney, and you need one yesterday! CCW Safe can offer the peace of mind of knowing that you’ve got a full legal team in your pocket. Finally, CCW Safe is available to anyone in America so long as they have any concealed firearm permit.

It should be noted that CCW Safe does not cover civil judgments or punitive damages (should you lose your case). The reason this is not a major concern for me is simply because losing a criminal case (such as a second degree murder trial) would result in a complete destruction of my life as I know it. Jail time, careers ending, family being torn apart…all of these things would take precedence over how much damages I’ll have to pay the court. My primary concern is obtaining good legal defense protection at an affordable price, and CCW Safe provides exactly that. 

Quick Comparison

How CCW Safe Works:

Notification: Immediately upon being involved in a critical self defense incident, you will need to notify CCW Safe.  First, notify 911 and request help and medical support.  Next, notify CCW Safe by calling the 24 hour emergency number on your membership card.  You will talk to an attorney who will give you guidance on your next action.  You will be instructed to give a very basic statement.  This statement should include your name, the fact that you are a victim and were forced to defend yourself, identifying the suspect, any witnesses, and present your ccw permit and CCW Safe membership card.  You will be instructed to advise authorities that you have legal representation and that you would like to give a full statement in the presence of your attorney. CCW Safe attorneys may initiate an investigative response team to begin investigation on your incident.

Official Interview: CCW Safe attorneys will attempt to secure a 24 – 48 hour window before any statement is given.  This is based on the fact that all parties involved will want the most accurate account of the incident.  Once that interview is scheduled, you may give an official statement after consultation with your attorney.  You will be advised not to talk to anyone, not even your family and friends about the incident until the official interview is complete.  Even after this interview, you will be advised to keep strict discretion about any conversation regarding the incident until the decision is made by the District Attorney or States Attorney on whether any charges will be filed.   Any media requests for interviews should be directed to your legal counsel.

Determination Phase: There will be a period of time, ranging from days to weeks that will determine if any criminal charges will be filed.  In the case of civil or administrative action, this period of time may be much longer, possibly up to a year or two.  During this time, CCW Safe will retain all investigative reports, interview reports and other reports necessary to prepare for the “next fight” if needed.

Preparation: It is always possible that civil action and/or criminal charges could be filed. In a civil case (one where someone sues you for causing them an injury based on negligence) there is a long period called discovery. This is the mechanism that all parties have to learn about what evidence there is and what evidence they intend to put on at the time of trial. This is a n incredibly costly process of meetings with witnesses, experts, deposition testimony, etc. This all has to be done in advance of a trial. In a criminal charge, there is no discovery phase. There are no depositions. But, there are witness meetings in an attempt to prepare the best possible defense. CCWSafe will provide the lawyers for our members at no cost to the member. This is a savings of tens of thousands of dollars.

Defense Phase: The defense phase is the actual trial process.  Again, this can last a long time and can be a very stressful time, perhaps the most stressful time of your entire life.  CCW Safe will provide representation throughout the trial process, and even into retrials or appeals if necessary.  And remember, no additional fees are charged to the member for this.

How to Enroll:

Enrolling in CCW Safe is easy, simply click here or visit www.ccwsafe.com/legalheat

It’s once again that magical time of year when each state is scrambling to write as many gun laws as possible before the close of the session. Here in Utah we’ve got a gem of our own brewing in the form of HB 0276. Like a wolf in sheep’s clothing it has disguised itself as a pro-gun piece of legislation and sadly even managed to fool gun rights groups like the Utah Shooting Sports Council. Make no mistake, HB 0276 is the antithesis of pro-gun legislation and everyone needs to understand why.  For those of you outside of Utah, hopefully this will help you spot similar proposals in your state.

UT HB 0276

First, let’s briefly cover what HB 0276 does. Currently under Utah law (as it is in most states) the crime of disorderly conduct is limited to a few select acts. Here is how the current law reads:

(1) A person is guilty of disorderly conduct if:
(a) he refuses to comply with the lawful order of the police to move from a public place, or knowingly creates a hazardous or physically offensive condition, by any act which serves no legitimate purpose; or
(b) intending to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, he:
(i) engages in fighting or in violent, tumultuous, or threatening behavior;
(ii) makes unreasonable noises in a public place;
(iii) makes unreasonable noises in a private place which can be heard in a public place; or
(iv) obstructs vehicular or pedestrian traffic.

Utah Code Ann. § 76-9-102

Now, here is what Rep. Paul Ray would like added to the disorderly conduct statute:

(3) The mere carrying or possession of a holstered or encased firearm, whether visible
or concealed, without additional behavior or circumstances that would cause a reasonable
person to believe the holstered or encased firearm was carried or possessed unlawfully or with
criminal intent, does not constitute a violation of this section. For purposes of this section, the
belief of a reasonable person may not be based on a mistake of law. Nothing in this Subsection
(3) may limit or prohibit a law enforcement officer from approaching or engaging any person in
a voluntary conversation. (emphasis added by Legal Heat)

On first glance one might think this law is great. After all, it clarifies that my open or concealed carrying of a firearm (in and of itself) cannot constitute disorderly conduct…but is that all it does? Holstered or encased. That my friends is what we call a qualifier, and when it comes to the exercise of civil rights qualifiers go by another name…infringements. Ask yourself why the proposed legislation simply doesn’t say, “The mere carrying or possession of a firearm, whether visible or concealed…” That’s a law I could get behind, no qualifiers. But when you add contingencies such as “holstered or encased” all of the sudden you open the door for law enforcement (and the courts) to come to the very logical conclusion that anything that isn’t holstered or encased does in fact constitute the crime of disorderly conduct. Actually, under the rules of statutory construction the courts are compelled to interpret this proposed law as outlawing the open carry of unholstered firearms. When the legislature enumerates an exception to a rule, the courts are to infer that there are no other exceptions. Meaning, when the legislature says its ok to open carry a holstered or encased firearm, the rules tell us everything except those two manners of carry are then illegal. The bill’s sponsor Rep. Paul Ray clearly supports this restrictive interpretation, as he explained to KSL:

“So if someone is carrying a gun around in their hand they can be cited,” he said. “This bill really clarifies things and gives them an outline to go by of in this situation you can write a ticket and in this situation you can’t.”

The same goes for people who openly display guns on their body. The man in JC Penney last year could have been charged with disorderly conduct, he said.

If they strap a rifle onto their back and walk into JC Penney, you can be cited for disorderly, which you ought to be,” Ray said. “But if you have your handgun holstered then you are ok.”

Rep. Paul Ray wants to prosecute this man for exercising his rights.

Rep. Paul Ray wants the state to give him the ability  to put this man in jail for exercising his rights.

In other words, currently a Utah resident has a constitutionally protected right to sling a rifle over their shoulder and go about their business as they please. Rep. Paul Ray doesn’t like that (freedom makes some people uncomfortable) so he wants to take that constitutional right, narrow it, and criminalize what is currently a perfectly legal exercise of one’s right to bear arms. Does this sound like a piece of pro-gun legislation groups like the Utah Shooting Sports Council should be lobbying for? No. It sounds more like an infringement of my rights. Remind me again how gun rights activists are supposed to feel about infringing on rights?

Follow me down a logical path for a moment. Currently Utah law places no restrictions on a permit holder’s ability to carry a firearm however they choose. They can carry a handgun in their pocket, or an M1 Garand slung over their shoulder (bayonet and all). With this legislation the state would narrow that right to “holstered or encased, whether visible or concealed.” What, then, prevents Rep. Paul Ray from having his delicate sensitivities further offended a few years from now and removing the word “visible” from the code? Does open carry now become illegal in Utah? No. A better solution is NOTHING becomes illegal and Rep. Ray either amends the HB 276 or is outed for the civil rights infringing hoplophobe that he appears to be. Not in my state Rep. Ray, not in my state.

Why does any of this matter? Because of the Overton window.

The Overton Window Theory.

Most of us don’t plan on slinging rifles over our shoulder and going to the store. As I’ve mentioned prior, I open carry my holstered handgun roughly 80% of the time and conceal it the other 20%. I have never open carried a rifle in public. So why am I so upset by Rep. Ray’s legislation? Because I understand how the Overton window works, and if you don’t, you should too.

The Overton window theory describes a narrow “window” which constitutes the range of ideas the public will accept and support at any given time. Essentially, there will always be fringe elements on either side of a political issue, then there is a happy place somewhere in the middle where most normal people operate. We need the fringe elements to balance out the middle. The extremes on either side are always heavily scrutinized, but we need them. If you take away the guy who open carries his AR into JC Penny (society calls him extreme, I do not), then suddenly the guy who simply open carries a holstered handgun becomes the extreme. Subsequently the Overton window shifts towards the ant-gun perspective, and the slippery slope begins.

Under current Utah law my act of open carrying my holstered firearm fits comfortably within the margins of the overton window. If, however, the guy who open carries his AR is no longer allowed to do so now I become the extremist. We need the fringe elements to balance out the middle.

Under current Utah law my act of open carrying a holstered firearm fits comfortably within the margins of the overton window. If, however, the guy who open carries his AR is no longer allowed to do so I now become the extremist and the Overton window naturally shifts towards the anti-gun side. We need the fringe elements to balance out the middle.

Don’t believe in the Overton window theory? Think I’m being paranoid? Let’s take a trip down memory lane with the state of California shall we (click to enlarge the graphic).

After each law was passed narrowing the right to open carry in California, the Overton window shifted and caused more scrutiny to be focused on those who had once been comfortably residing within the window.

After each law was passed narrowing the right to open carry in California, the Overton window shifted and caused more scrutiny to be focused on those who had once been comfortably residing within the window.

So with all due respect to groups like the Utah Shooting Sports Council and Rep. Ray, Utah does not wish to go down the same path of “qualifiers” as we’ve seen California travel. I’ll take my rights without qualifiers, and if I see a guy (or gal) open carrying an AR into JC Penny I’ll buy them lunch. If Rep. Ray believes open carry of unholstered firearms should be criminally prosecuted I know a place with beautiful beaches where he can violate civil rights to his heart’s content.

As a final note, I will say that in my experience I have never seen a single case in Utah where a person has been convicted of disorderly conduct for merely open carrying a holstered firearm. I have searched Westlaw and spoken with several other attorneys, and no one could point me to a single example of a conviction. That isn’t to say it hasn’t occurred (though I have my doubts), but isn’t this law designed to finally protect the right to open carry? From where I’m sitting it looks like we’ve got that right pretty well locked up and we don’t need Rep. Ray bargaining our existing rights in exchange for something we already have. I’d be glad to get behind a piece of legislation that protects all manner of carrying firearms, but not one that protects carrying under the conditions Rep. Ray feels comfortable with at the expense of all other manners. (Side note: I’d welcome any verifiable examples of convictions if anyone has any. I’m looking for someone who was simply open carrying a holstered firearm and was convicted of disorderly conduct.)

If you would like to contact Rep. Paul Ray and let him know how you feel about his proposed legislation you can do so by emailing him here: pray@le.utah.gov. Also, remember to contact your local representatives and voice your opinion as well. Finally, please share this article so others may contact their reps as well.

FOR A COMPLETE SUMMARY OF THE GUN LAWS IN EACH STATE DOWNLOAD THE LEGAL HEAT APP ON YOUR PHONE OR TABLET. 

DISCLAIMER TO OUR LEO FRIENDS: This article is not meant to offend or insult anyone in law enforcement. It is meant to apprise the readers of their constitutional rights. Like all law enforcement, while in uniform you are an actor of the state. However, when you take off the uniform you are a citizen fully equipped with all the same constitutional liberties as those you interact with on your job. As such, this information should be appreciated by you in your individual capacity, and respected by you when acting on behalf of the state. The readers of this article are mainly concealed firearm permit holders. Meaning, they are exceptionally law abiding citizens. It is not our intent to help criminals conceal firearms during traffic stops, we simply want to help the law abiding remain law abiding. 

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Let’s have a very blunt conversation about interacting with law enforcement while in possession of a firearm. This article is not meant to focus on WHEN a police officer has a legal right to stop you (we’ve already covered that topic here) but instead is meant to cover the less analyzed issue of whether or not you should inform the officer that you are carrying a firearm? The simple answer (in our opinion) is no, unless you are required to do so by state law.

Let’s start at the beginning. There are a handful of states out there that have enacted a statutory “duty to inform”. Those states require you to disclose the fact that you are carrying a firearm whenever officially stopped by law enforcement. To my knowledge the duty to inform states are as follows:

  • Alaska (Alaska Stat. Ann. §11.61.220)
  • Arkansas (Ark Admin. Code 130.00.8-3-2(b)
  • Delaware (Griffen v. State, 47 A.3d 487)
  • Illinois (430 ILCS 66/10)
  • Louisiana
  • Michigan (MCL 28.425f(3))
  • Nebraska (Neb. Rev. Stat. §69-2440)
  • North Carolina (N.C. Gen. Stat. Ann. §14-415.11)
  • Ohio (Ohio Rev. Code Ann. §2923.16)
  • Oklahoma (Okla. Stat. Ann. tit. 21, §1290.8)
  • South Carolina (§23-31-215)
  • Texas (must provide permit when asked for ID, §411.205)

Some states have “Quasi Duty to Inform” laws that require a permit holder to have his/her permit in their possession and surrender it upon the request of an officer (see Iowa Code §724.5 for example) Being required to give an officer your permit and being required to tell an officer you have a firearm are two entirely different things.

TO FIND THE CONCEALED CARRY LAWS FOR ALL 50 STATES DOWNLOAD THE LEGAL HEAT APP!

Again, under the laws of the above states you would be required to inform an officer if you have a firearm. If I lived in any of the above listed states I would sue the state for violating the unconstitutional-conditions doctrine, as they cannot make you waive one right (privacy) in order to exercise another right (carrying a firearm). More on this later.

Granted that in most states you are not legally required to tell a police officer if you are carrying a firearm, but why would I tell you it’s a bad idea? There are 3 basic reasons.

REASON NUMBER 1: DON’T TALK TO STRANGERS. POLICE OFFICERS ARE STRANGERS. 

keep-calm-and-just-don-t-talk-to-strangersJustice Robert Jackson (U.S. Supreme Court Justice) once said, “any lawyer worth his salt will tell the suspect [his client], in no uncertain terms, to make no statement to the police, under no circumstances.” When interacting with law enforcement less is always more. When I was a child I was told to never talk to strangers. That was sage advice and I’ve utilized that wisdom my entire life. A police officer is a stranger. Not only is he or she a stranger, they are a stranger deputized with the authority to ruin your entire life. Make no mistake, a police officer’s job is to put people in jail.

BUT PHIL, POLICE OFFICERS ONLY PUT CRIMINALS IN JAIL, AND I’M NOT A CRIMINAL!!!

False, you are a criminal. Do you have any idea how many gun laws there are out there? No? Neither does our own department of justice. If you don’t even know how many gun laws there are, how can you possibly know you are abiding by all of them simultaneously?

Here’s a simple example of how the “I’ve got nothing to hide” mentality can land you in jail. Let’s imagine you’re driving through scenic Washington state and you stop to get gas. While filling up with gas you are approached by a friendly officer who compliments you on your car (you’re driving a Dodge), and then asks you where you are headed. You have nothing to hide (remember, you’re not a criminal) so before answering you politely inform the officer that you are a concealed permit holder and there is a handgun in your vehicle. No problem right? Make sure to tell the officer that when he arrests you. You see, unbeknownst to you Washington state has the following statute:

A person shall not carry or place a loaded pistol in any vehicle unless the person has a license to carry a concealed pistol and: (i) The pistol is on the licensee’s person, (ii) the licensee is within the vehicle at all times that the pistol is there, or (iii) the licensee is away from the vehicle and the pistol is locked within the vehicle and concealed from view from outside the vehicle. Wash. Rev. Code Ann. § 9.41.050

The law mandates that when you exit the vehicle the gun must be locked & out of view. You didn’t lock your vehicle because you simply stepped out for a moment to fill up with gas …aaaaaaannnnddd….now you’re a criminal. See how fun that is? Of course we would like to hope the officer wouldn’t be so overzealous, but sadly things sometimes get weird when dealing with law enforcement. Want to know a better way to handle that situation? Just don’t tell the officer there’s a gun in the vehicle at all.

It’s not about being disrespectful to the officer (I would never do that) and it’s not about you intentionally concealing a crime. It’s simply about you not going to jail because of some obscure gun law that you had never heard of. For more on this subject you should all watch this fantastic video.

As a final note on this topic, we’re often asked what someone should do if they are asked if a weapon is in the vehicle? In that situation the first thing to remember is never lie. Lying to a police officer is a crime. However, you are also not generally required to answer that question. Asking if there is a weapon in a vehicle (during a traffic stop) is an investigatory question. It is the same as an officer asking where you were on April 26th, 1992? (there was a riot on streets tell me where were you?) You are usually not required to answer these questions. You should simply ask the officer if that question pertains to the reason you were stopped, and if not, if you can go on your way? Granted, he or she is probably going to write you a speeding ticket but that’s a small price to pay for liberty, right?

REASON NUMBER 2: JUST SAY NO! CONSENTING TO ANYTHING CAN ONLY HURT YOU.

I challenge anyone reading this to think of any instance where someone consenting to a search or seizure has made their life better. Spoiler alert…it’s never happened. Nothing good can ever come from giving a police officer permission to look in your vehicle, come in your home, or look in your pockets. Nothing.

The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. Miranda v. Arizona, 384 U.S. 436, 469, 86 S. Ct. 1602, 1625, 16 L. Ed. 2d 694 (1966)

Can and will be used AGAINST you. Nothing that a police officer finds during a search will be used to prove your innocence. The only possible outcome of a search is bad. The best case scenario of a search is you get to go home. The worst case scenario is you go to prison for the rest of your life. Sounds like a simple decision right? But even knowing that I am continually amazed at the amount of people who consent to a search, especially a search of their vehicle. When a police officer begins a questions with “can I” or “may I” you should immediately respond with no. Can INO!…May INO!. Declining a search does not ever give an officer the probable cause needed to search a vehicle. Nothing bad can happen from refusing a search, everything bad can happen from consenting to a search.

REASON NUMBER 3: THE TERRY DOCTRINE

A potential outcome of informing an officer that you have a firearm in the vehicle (when not required to do so by state law) is that the officer might then have the ability to perform what is called a Terry Stop or a Terry Frisk. The Terry Doctrine stems from a 1968 Supreme Court case, Terry v. Ohio. In Terry, the United States Supreme Court held that an officer may perform a protective frisk and search pursuant to a lawful stop when the officer reasonably believes a person is “armed and presently dangerous to the officer or others.” (see: 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). This also gives the officer authority to temporarily disarm the permit holder “in the interest of officer safety.” The Court did caution that a search “is a serious intrusion upon the sanctity of the person” and should not be taken lightly. Still, the basis for the search itself is largely left up to the officer’s discretion once he is made aware of the presence of a weapon.

The sole purpose for allowing the frisk/search is to protect the officer and other prospective victims by neutralizing potential weapons. (see: Michigan v. Long, 463 U.S. 1032, 1049 n. 14, 103 S.Ct. 3469). Although it is unlikely to occur to a permit holder, a Terry Stop allows a police officer to remove you from your vehicle, pat down all occupants of the vehicle (using the sense of touch to determine if they are armed), as well as search the entire passenger compartment of the vehicle including any locked containers that might reasonably house a weapon. In other words, telling a police officer you have a firearm on you or in your vehicle can serve as a waiver of your 4th amendment rights. Since we’re not in the business of waiving rights, we recommend you revisit rules number 1 and 2. 

The Terry doctrine is why states with “duty to inform” laws create such a constitutional dilemma. If, as a condition to carrying a firearm, I am required by law to inform an officer that I have a firearm in my vehicle, then I am simultaneously required to waive my 4th amendment privacy rights. That is a violation of the unconstitutional-conditions doctrine and someone needs to challenge those laws in court.

As always, we encourage everyone to treat law enforcement with respect. Very little is accomplished in life by acting like a belligerent Neanderthal. Smile, thank them for what they do to better society, and emphatically stand up for your rights.

About the Author: Phil Nelsen is a Utah licensed attorney. He is not, however, your attorney. This article is intended for entertainment and educational purposes only and should not be treated as legal advice. Readers should retain an attorney in their respective state for legal advice on the topics discussed in this article. 

In Defense of Open Carry

Posted: December 19, 2013 in Uncategorized

Recently the lemmings at Salon.com published an article decrying the horrors of a dangerous “new craze” in the gun community. The “craze” they reference was…wait for it…open carry. For those of you in the gun community, you understand that open carry is simply the conspicuous unconcealed carrying of a firearm, usually a handgun. Open carry is legal in the vast majority of states, and has been that way since the beginning. Most states, such as South Dakota for example, are traditional open carry states. They have no laws prohibiting the practice of open carry, and thus the practice is not illegal (things that aren’t illegal are…legal). Other states, like Iowa, statutorily protect the practice of open carry for those possessing a permit.

FOR A FULL SUMMARY OF OPEN CARRY LAWS IN EACH STATE DOWNLOAD THE LEGAL HEAT APP FOR SMARTPHONES AND TABLETS

In the article, Salon goes to great lengths to prophesy blood in the streets. They use predictable tactics, like citing extreme examples (several of which are broken links or complete lies), and hypothesizing what “might” happen if this craze goes mainstream. One minor detail the chaps at Salon seem to have overlooked: Open carry has been around for hundreds of years, hasn’t resulted in any legitimate issues, and isn’t going anywhere. Since the age of 21 I have carried a firearm every day of my life. On a day-to-day basis I open carry roughly 50% of the time. One of our instructors open carries 100% of the time, as does one of my brothers. This year our company began a photo campaign on our Instagram called Open Carry Across America where we document ourselves open carrying at interesting places across the nation. In the last 6 months alone, I’ve open carried in Omaha, Seattle, Spokane, Salt Lake, Boise, Milwaukee, Philadelphia, Des Moines, Richmond, etc. I have also carried concealed in all of those cities. As of today, I have never had a negative law enforcement encounter involving open or concealed carry, never had a business ask me to leave, never had an alarmed citizen. Nothing. Very much to the contrary, I’ve had dozens of positive comments from men and women who commend me for carrying. Most people, however, simply don’t notice that I’m carrying at all and life goes on as normal. There is a subculture of open carriers who seek proactively to elicit law enforcement encounters. I am most certainly not one of those people, but the attorney in me understands why they do it. Like all aspects of society, we need the fringe elements to balance out the middle and shift the Overton window.

My wife snapped this photo of me open carrying in line behind two police officers at lunch. Like every other LEO experience i've ever had, they didn't give me a second look. I didn't give their guns a second look either.

My wife snapped this photo of me open carrying in line behind two police officers at lunch a few weeks ago. There were a dozen or so of them there that day for a luncheon. Like every other LEO experience I’ve ever had, they didn’t give me a second look. Notice no one is panicking. If you listen closely you can hear the minds of salon.com editors exploding.

It’s understandable why Salon.com would object to the practice of open carry. After all, I’d imagine those dainty souls are about as familiar with the carrying of firearms as they are with manual labor or where their food comes from. What is less understandable, however, is why those invested in the gun community object to open carry. Second Amendment personalities like Rob Pincus and James Yeager have been outspoken in their objection to the practice. James and Rob don’t agree with open carry because they fear it will offend the powers that be and result in more restrictions on the right to bear arms. I don’t know either of those gentlemen and I respect their work, but I do know history and I know the law. Constitutional rights (as discussed below) require extreme exercise for promulgation. The sentiment that ANY CONSTITUTIONAL RIGHTS should be trepidatiously exercised so as to not offend the sensitivities of the State is laughable. Ridiculous. Take the first amendment for example. The cases that have most solidified the rights contained in the first amendment revolve around extreme subject matter like pornography, obscenity, and protesting soldiers funerals. All things that I have no desire to participate in (and I despise the westboro baptists) but my point remains. The more flagrant the exercise of any constitutional right, the more likely such right is to be solidified (for further reference read Rosa Parks, Susan B. Anthony, etc.). Besides Rob and James’ concern about rocking the boat, many in the gun community claim open carry gives up your tactical advantage.  I disagree with both of these statements.

In every course I’ve taught (nearly 20,000 students at this point) I’ve challenged the participants to give open carry a shot (no pun intended). My reasons for giving the challenge are simple, it preserves the right and deters crime. For those two reasons alone, everyone, not just gunnies, should support the practice of open carry. Allow me to expound.

A right unexercised is a right lost.”

I don’t know who said it, but it has become the battle cry of open carriers. It is also very much true. Just like muscles, constitutional rights need to be exercised in order to stay the effects of atrophy. If any constitutional right becomes dormant (i.e. unexercised) it will atrophy and die. Take California for example. People are amazed to learn that up until January 1, 2012, an individual could walk down most California streets open carrying a handgun or rifle. Relatively no one was doing it, however, so in late 2011 the legislature met in their secret chambers and stripped the right from the people. In an instant, what was once a constitutional right became a criminal act. Imagine how that abdication of rights would have played out differently had, instead of a handful of open carry activists, 250,000 people been open carrying firearms each day. 2 million people. California didn’t lose the right to open carry because they had a few fanatics open carrying ARs into Starbucks, they lost it because they didn’t have ENOUGH people carrying ARs into Starbucks. My point is as simple as it is indisputable. The more people exercising a particular right, the more solidified against encroachment said right will become. This is the primary reason I open carry.

The second reason I open carry is best summarized by Thomas Paine:

“The supposed quietude of a good man allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance of power is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside.” Thomas Paine

The supposed quietude of a good man (woman) allures the ruffian. Have you ever heard of a police officer getting carjacked? Why not? Is it the badge, the car, or the uniform that prevents their victimization? Obviously not. It’s the gun they carry on their hip. Same gun you can carry on your hip.

I have worked as a prosecutor and taken hundreds of criminals to court. I have also worked as a defense attorney. A  couple things I’ve learned from that experience. First, criminals are like water and will almost always choose the path of least resistance. Much like any predator, they will seek out the weakest of the herd to prey upon. Call me crazy, but if I were seeking to assault someone I probably wouldn’t choose the guy/gal carrying a 1911 in a drop thigh holster. Unless of course it was a Para Ordnance, then I’d know it would jam on the first cycle.

The second thing I learned from my time prosecuting is that criminals rarely commit spree crimes (rape, robbery, burglary, carjacking) with loaded firearms. Only once did I see a loaded gun used in a spree crime, and it was during a domestic dispute. All the rest were BB guns, fake guns, or unloaded guns. Criminals use fake guns for a variety of reasons. Some think they will get a lesser criminal charge (not true), but most are simply not gun people. These aren’t guys who put a thousand rounds down range in preparation for their foray into carjacking. Most have never fired the weapon they are using, don’t know how to maintain it, and wouldn’t know the first thing about effectively using it.

You know why gangsters shoot their guns sideways don't you? That's the way it came in the box and they never read the owners manual!

You know why gangsters shoot their guns sideways don’t you? That’s the way it came in the box and they never read the owners manual.

When a criminal walks into a bank and sees me standing there with a gun on my hip they essentially know three things:

  1. I’ve probably got a real gun
  2. I’ve probably got real ammunition in my gun
  3. I probably really know how to use my gun

Again, open carry isn’t so much about reacting to a violent altercation as it is deterring the altercation altogether.

But Phil, they see your gun and now you’ve given up your tactical advantage. You’ve made yourself a target! Tactical advantage, tactical advantage, tactical advantage!!!

False. As mentioned above, my experience tells me odds are in my favor that the criminal’s gun is unloaded. Beyond that, if open carry really made you a target how do you explain criminals consciously avoiding businesses that utilize armed guards? If open carry encourages targeting, wouldn’t those businesses be hit with robberies most often? No, methinks criminals will opt to avoid gunfights whenever possible and simply seek out easier targets. At least that’s what I would do if I was a criminal. In that same logical vein, non-carriers are transitively benefitted merely by being around an open carrier. If and to the extent open carry deters criminal attacks for the carrier, it will also deter those same attacks for anyone in the immediate area surrounding the carrier. For this reason open carry is good public policy and should be embraced by everyone, including those outside the firearm community. More people open carrying will mean less locations where criminals will find unarmed victims, therefor resulting in a concentration of criminal activity and more effective law enforcement methods.

Finally, though I hate to get into tactical debates based solely on hyperbole, open carry lends itself to substantially faster draw times and the carry of larger (more accurate) handguns. As an example, I shot a mountain lion this week with my open carry handgun at 75 feet on the move. Not a world record shot (or lion) by any means, but try pulling that off with your pocket Ruger LCP. Our company has never portrayed itself as a tactical school and we never will. We are legal experts, we’ll leave the tactical debates to guys like Rob and James.

Again, I’m not saying open carry is the only way to go or is superior to concealed carry. I use both methods of carry equally. My point is simply that both methods of carry (open or concealed) have their merits and should be exercised vigorously. It’s time for open carry to be embraced by the entire gun community. Whichever way you choose to carry, I echo the sentiment of Patrick Henry when he noted that “the great object is, that every man be armed…”