By Attorney Michael P. Ehline, Esq. In the past, California permitted individuals to carry unloaded firearms in public, with the condition that the weapon was displayed in plain sight and only if the individual was not in a prohibited area. 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.
Here is an example a police officer enforcing the Constitution in a positive manner.
The Recent Anti Second Amendment Laws
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 law made it illegal to openly carry unloaded handguns.
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. (Source.)
The new legislation is complicated for the individuals, who are exercising their Second Amendment right to bear arms, by lawfully carrying their firearms. The Second Amendment provides gun owners protection from being wrongfully harassed, arrested or prosecuted, for carrying a legal firearm, but the California legislature is controlled by radical leftists, who have little use for the Constitution.
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, who have been accused of allegedly violating the California gun laws and specialize in this area of the law. 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 openly carry a weapon. The legality of this practice by individuals was premised on the fact that it was not prohibited by any existing California state laws. This has changed, with the endorsement of California Penal Code 26350.
One important factor is the new law only applies to handguns and not to rifles or shotguns. This leaves several avenues for gun activists to continue to have the ability to practice their support, even with the limitations the enactment of the law. Law abiding gun owners should have the ability to exercise their Second Amendment right to bear arms openly.
Openly Carrying Serves Two Purposes, the First is Believed by These Individuals:
- This is an effective way to prevent becoming a victim of a violent crime.
- A belief that when an individual who possesses a firearm visually, will not be forced into a position that they would actually need to use their weapon.
Open carry laws in California do not apply to assault weapons [liberals in the legislature think any weapon that looks scary is an assault weapon], and are prohibited from being openly carried under Penal Code 12280PC, which is California’s law against possessing assault weapons or other types of destructive devices that are prohibited under Penal Code 12303 PC, which is the code prohibiting the possession of destructive devices.
Politics and Open Carry
In 2004 the Unloaded Open Carry (UOC), movement began, and has 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 gather in public places for “meet ups,” which include restaurants and Starbucks in particular. When these gatherings occur, some of the individuals who openly carry, will wear tape recorders, and possibly 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, in order to challenge their legal rights in court.
These group meetings are a way to protest the California laws that relate to concealed weapons permits, by the activists. Individuals who are in favor of open carrying of firearms argue that the state only issues the concealed weapons permit to people who are “well connected” and deny the applications of ordinary citizens.
Permission to Open Carry
Individuals who are not prohibited from possessing firearms, however those individuals that fall in the “excluded” category include, but are not limited to:
Anyone under the age of 18, who are minors.
Individuals who are a potential threat to themselves or other people, and individuals diagnosed with a mental disorder. Individuals who have been convicted of a felony, and are prohibited from possessing, owning, purchasing or receiving fire arms, under California’s Penal Code 12021 PC, “felon with firearm” law.
Handguns, shotguns and rifles can be openly carried, as long as the individual has not been legally barred from owning, or possessing firearms. Ammunition or magazines must be carried:
Openly, such as in a holster
Carrying of an unloaded magazine in the gun
This will help in avoiding the legal issue of having a concealed or partially concealed magazine, which would be considered an illegally concealed weapon. The open carry laws in California apply both to weapons you carry on your person and the firearms that are openly possessed in a vehicle or motorcycle. When passing through a school zone, you are required to place your weapon in a locked case, which complies with Penal Code 12026.1 PC.
Understanding Other Illegal Acts
Violation of the California Penal Code 12025 PC, “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, there are numerous other California gun laws that will prohibit the carrying of a firearm legally. It is important to ensure you are not violating any of these other statutes, when carrying a firearm.
The California gun laws include, but are not limited to:
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 PC 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 because open carry, is the carrying of a firearm plainly and openly in public.
Firearms are considered unloaded, when the ammunition for the weapon is in a separate storage compartment. Then you are permitted to carry the unloaded firearm and ammunition, unless it is going to be used in a felony. Then it is legally considered a loaded weapon, even when the ammunition is carried separately.
The law permits residents to carry a loaded weapon, under specific situations, including the following, but not limited to:
In your home
- On private property
Certain businesses, in which you have at least a “possessory” interest in, and have the right to exclude others from it, or control the activities within it. In the event you are stopped by a police officer, and even if it is in a location that is not prohibited to open carry a firearm, you are obligated to allow them to inspect your weapon, so they can make certain it is not loaded. Failing to do this, will give the police officers probably cause to arrest you.
What cannot Be Done
California Penal Code 417 PC states that even when you are compliant with the open carry laws in the state, your weapon is unloaded, as well as visible, in a location where it is legal; you may not use the weapon to intimidate or threaten any person. It is likely, if you pull your firearm in a threatening, angry or rude manner that you will be charged by prosecutors with a crime.