UT HB 0276 and the Overton Window

Posted: January 24, 2014 in Uncategorized

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. 

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Comments
  1. Daniel says:

    Thank you for your article. UT Gun Rights also took a position against this bill last year. I hope they do so again this year. See
    http://utgunrights.com/alertsupdates/2013/bills2013.htm#hb268