This is the first take on my thesis for my forthcoming book on the general history and topic of open carry. past to present.
This law denounces not as harm
With the so-called victory for open carry and the Second Amendment in Young v. Hawaii, many are no doubt curious why open carry is called the constitutionally approved method of carrying a gun, while concealed carry often requires a permit. Though society seems more comfortable with concealed carry, courts at least claim that their preference under the law is open carry. The huge discrepancy has to do with the history of violence in the South and in the Old West.
Though commonplace and the preferred method of carrying a handgun, concealed carry suffered from a negative reputation as a “pernicious practice” and “evil habit.” This demonization was due to concealed weapons’ associations with passionate violence and sudden homicides. A culture that tolerated and often encouraged easy violence blamed not the hearts of men for crime, but the effects of an inanimate object in the pocket for influencing men to kill. This violence and supposed deception justified many legal decisions against concealed carry, but supporting open carry.
Concealed carry has generally always been common, as much as, if not more than, open carry. Open carry was often not as widespread as imagined because of negative attitudes towards carrying guns. In many places until the shall-issue wave of concealed carry laws in the 1980s and 1990s, carrying a gun was seen as a suspicious, if not outright criminal, practice. Concealed carry’s historical tarnished reputation so demonized carrying a gun, it discouraged many from carrying openly, even though it was legal.
Today sensible people find it laughable to think that merely placing a weapon under clothing would make someone more liable to be violent, yet in the 19th Century and early 20th Century, many believed just this. Notorious gunmen, criminals, and other undesirables hid their guns just as they concealed their evil intentions. This idea didn’t come from nowhere.
Pre-Civil War Southern society had a nasty habit of dueling or fighting over matters of honor. Duels were considered the dignified way of handling disputes while brawls in the street or the heat of the moment were considered low brow. By the mid-19th Century, dueling died out as the younger generations thought them silly. Rather than pre-arrange a duel, the post-dueling society men fought in hot blood. No matter how the dispute or insult was settled, violence in defense of honor became a Southern cultural norm. As Southerners made their way across the frontier all the way to California, their fighting culture came with them.
In mining camps, prairie cattle towns, and out on the range men fought each other over minor pretexts, much as they do now, except then, fights that lead to murder were much more common and almost socially acceptable. Refusing to fight to defend one’s honor was considered cowardly. Non-lethal fights often and easily turned into murder as the taboo against casual violence was weak. As words deteriorated into fists, or even before that, someone would draw a weapon carried in their clothes and assault or kill the other. The problem of senseless murders was exacerbated by the refusal of juries to return guilty verdicts.
Usually the barest excuse for self-defense would result in a jury acquitting the killer. For instance, a man would pick a fight, the other guy would reach for a pocket pistol or knife, and the instigator would shoot first, claiming self-defense because the other guy was reaching for a gun.
The best way to compare this culture to today would be as if police didn’t investigate and prosecute gang murders because society places little value on the lives of gang members. Outside an often ambivalent ghetto culture, American society is horrified by inner city violence.
It didn’t matter that the only reason the victim was going for a weapon was because of the instigator. Sometimes, men were acquitted because the bare fear the victim who reached into his pocket “might” have had a weapon. Juries would accept the defense because the killer had a fear, remote as it might be, that the other party was armed. Eventually, society stopped condoning what amounted to little more than legal tricks to excuse murder.
“Going for the pocket” became the bane of carrying concealed weapons and blamed for the ills associated with “pistol toters.” Today, this is known as a “furtive movement” and back then it was called the “hip pocket defense.”. One example is the death of Jim Courtright in 1887 in Texas.
Short dropped his hands, as if to smooth his vest. It was no time for movements even remotely suspicious. In such times as this, many a man in Texas has committed suicide by reaching abruptly for his handkerchief!
Going for a gun, whether one was there or not, could lead to shots being fired. This mere possibility often created reasonable doubt in the minds of a jury. As society became tired of juries acquitting on such thin grounds, justifiable homicide laws began to change. Defenses such as “I shot first as he might have had a gun,” were thrown out. An unreasonable, unsubstantiated fear was no longer enough to avoid a murder or manslaughter charge
A bare fear is not sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person and that the person killing really acted under the influence of those fears and not in a spirit of revenge.
Banning concealed carry also had another effect in the courtroom. If concealed carry was illegal, then it could not be presumed the victim had a gun simply because it was possible he was armed. A concealed weapon law meant that the law presumed the victim was unarmed and the killer must have known in fact otherwise. And if a man was killed “reaching for his pocket” and no gun was found, then the killer could be convicted because not only was the man unarmed, the killer had no right to suspect the killer was armed.
In other words, banning concealed carry took away a lot of excuses. At the same time, justifiable homicide laws came into effect, requiring among other things, if you started a fight, you had to back down and decline to fight any further before you could assert self-defense. The judicial system was also becoming more effective and stronger on the frontier. As a result of these reforms, convictions for murder went up and “honor violence” began to go down.
As society tamed, easy killing was looked down upon along with carrying a gun. Family life replaced wild living on the frontier and the kind of undisciplined culture that permitted violence and shooting disappeared as families and the middle class wouldn’t tolerate lawlessness. By the end of the 19th Century, it was considered uncivilized to fight and kill over insults and matters that could be settled in court or shrugged off.
These legal reforms and social changes probably had more effect on stopping impulsive violence than gun control, as men predisposed to killing knew that they stood little chance of getting past tougher juries. Mere prohibitions have only worked to keep the honest, honest. Small fines could be paid off and often were, judges reluctant to jail men as the town would have to bear the cost of feeding and housing a prisoner.
If the law couldn’t keep everyone honest, then the dishonest criminal would be the only one carrying, or at least open carry would make it obvious who was armed, so the thinking went. Support for concealed weapon laws came from those “who believed that there would be fewer deaths if combatants were forced to ‘fight fair’” without weapons. They were proven wrong about the bans. Gun control such as this was practically new territory and we can excuse those who in untried times exercised magical thinking to believe concealed weapon bans would keep men from packing heat.
Morally, open carry meant no gun was being hidden. It was the honorable (and generally legal) way to carry a gun. By contrast, concealed carry for the reasons stated above meant that one was trying to get an unfair advantage on someone or that evil intentions, not just the gun, were being concealed. If you had nothing to hide, then why hide your gun?
 Roth, Randolph. American Homicide. 2009 p. 219
…[carry concealed weapons is a] savage practice. Arms for self-protection may be needed by travelers and by persons living in unfrequented localities, but in all such cases they should be carried openly, as weapons of defense
There is nothing savage about putting a shirt or a coat over a gun. What is savage is escalating trash talking into murder and then, as a society, largely turning a blind eye to the behavior. Now, only among the dregs of society are the impulsive and gang or drug-driven nightclub, bar, and drive-by shootings “acceptable.”
Open carry was more common in the Old West and in bygone days, but it was not as common as Hollywood would have one believe. It was more common than today by virtue of the fact that more people carried guns more often. A good explanation is that open carry then was roughly as common as it is now in states where open carry thrives. Open carry has always been a largely rural phenomenon as city dwellers, for many reasons, prefer to carry concealed. Horsemen and cowboys often needed a weapon that could be fired at short range from the saddle or to kill a runway horse dragging its rider to death.
Open carry was often a fashion symbol or icon of manhood in the frontier west in a period that lasted at least from the California Gold Rush to the late 1860s.
After we had been in the town of Nevada City three or four months, the first ball was given. There were twelve ladies present and about three hundred men. The costumes were eccentric, or would be now. At that time it was the prevailing fashion for the gentlemen to attend social gatherings in blue woolen shirts, and with trousers stuffed into boot-tops. Every man was’heeled’ with revolver and bowie-knife.
Mark Twain said of his time in Nevada:
I was a rusty looking city editor, I am free to confess—coatless, slouch hat, blue woolen shirt, pantaloons stuffed into boot-tops, whiskered half down to the waist, and the universal navy revolver slung to my belt. But I secured a more Christian costume and discarded the revolver.
The prevalence and popularity of open carry varied from time and place. Some places it was a wide-spread practice, whereas in others it was not. It was tied directly to the actual or perceived necessity to carry a gun. For instance, in a violent frontier town, both kinds of carry were common, whereas in cities and pacified settlements few had a need to carry a gun at all. Family men didn’t get drunk and shoot it out in saloons and few felt the need to go heeled in small towns with little crime. Again, this is much like today where those in good neighborhoods with quality police feel that they don’t need to be responsible for their own safety.
Open carry declined as early concealed weapon laws increased. Quite probably, the general vilification of handguns lead honest people to hide their guns and take their chances with the lax laws. As the example from Mark Twain shows, there was a time when open carry was common and no one was ashamed of it. Something changed after the Civil War, the resulting “Wild West,” and it was most likely society’s attitudes towards guns, lead no doubt by a growing resentment to the toleration of violence.
Until very lately, few very Americans would openly admit that they carry a gun for self-defense because for so long it was assumed that carrying a gun was unnecessary, dangerous, and something that only bad guys did. Police were just a phone call away. It is a shame that carrying a gun for self-protection against predators was stigmatized to the point that we still feel the effects today. Bizarrely, now many are ashamed to openly carry our guns, lest people judge or harass us, while we are perfectly content to hide our guns the same way criminals do.
Many various state court cases found that open carry was constitutionally protected (an excellent summary is in the Peruta v. Gore en banc opinion), but concealed carry was not. Though the actual reasons vary case to case, the reasoning was based in the idea that concealed carry was a dishonest thing to do and a root cause of much violence. Open carry suffered no such stigma as it is too hard to cast aspersions about an open carriers intentions if everyone can see the gun (unless you are a 21st Century hoplophobe).
As urban life increases population density, it is easy to imagine a variety of reasons, both rational and irrational, why some sort of regulation on who may carry concealed weapons would seem desirable. Especially as a village becomes a city, it becomes increasingly difficult to know whom to trust. In such a setting, the temptation might be strong to make sure that arms are clearly visible. Conflict with someone who is armed will probably be more dangerous than the same conflict with an unarmed person, hence it would be best to know in advance of an argument if someone is armed or not.
Neither method of carry is inherently more violent that the other. Concealed carry was simply more common in general and thus was associated with violence. Only by perception was concealed carry considered evil; psychologically there is a connection of a hidden gun to an ambush. Without strong evidence against open carry, justices could not manipulate the Constitution to ban it. Open carry provided a convenient way to ban concealed carry as one method of carry was left available, though many were dissuaded from practicing it.
It was schizophrenic time where concealed carry was damned, but many still did it anyway, too dissuaded by the damnation heaped on gun-toting in general to carry openly. It was as if the justices and legislators knew society had cowed to the hysterics of the hoplophobes.
Open carry was not as prevalent historically for three main reasons; first, the demonization of carrying a gun. Carrying a gun had gotten a bad rap, that even though many ordinary people in numbers far greater than legally armed citizens today thought it necessary to carry, that they felt they would be shamed if they carried openly. Because of violence and the wrong reputation attached to carrying a gun, an openly carried gun in their minds made them as much as a target for judgement as a dirty, low-down pistol-toting thug.
Two, it was easier to slip a gun into the waistband or pocket. Concealed carry being more common was most likely a function of clothing and fashion being different from today. It would have been easier to drop a gun into a large pocket or into the waistband than it was to strap on an old-fashioned leather holster. Modern holsters that are small, light, and comfortable did not exist and the equivalent solution would be to drop in a pocket-liner holster.
Three, where carrying a gun concealed or openly was illegal, many carried concealed illegally because it was, or so they felt, it was necessary to go armed. These erstwhile law-abiding citizens were prevented from legally carrying and had to carry concealed because there was no other way. Society had so unfairly lambasted the criminal misuse of guns that the legitimate carrying of guns was something to be kept secret.
Additional factors are the increase in modern policing, better communications technology to call for help or spread the word of a crime, increased urbanization, larger and denser populations leading to a safety-in-the-herd effect, and the broad social changes that toughened attitudes towards casual violence and considered carrying a gun “silly” and unnecessary.
For reasons of technology, criminal justice reforms, economic prosperity, and social reasons, the majority of the 20th Century was a remarkably peaceful and safe time for many Americans. We had the luxury of being able to rely on police for the most part. In areas with little predatory crime, firearm ownership was unnecessary. With this perceived lack of need, little risk, and few consequences for going unarmed, many lost any desire to carry a gun. Until the crime epidemic of the ‘60s-‘90s that brought us shall-issue concealed carry, that owning and carrying guns might be a solution to crime simply never occurred to most, as many still consider it unnecessary today.
Today we know that prohibiting the carry of guns for self-defense does not enhance safety. Open vs. concealed carry is not a debate that has any practical merit in the legal sense. We often carry concealed or refrain from talking about guns because we are afraid what others might think and say about us. While society has gone crazy these last few years, carrying a gun suffers from a negative reputation for reasons that society has forgotten. We are skeptical of carrying guns in public because our great-great grandparents thought it unnecessary and uncouth. The reasons that concealed weapon laws were instituted long ago no longer exist.
Open carry should not suffer because over a hundred years ago, people did not want anyone to carry at all. We should not be hiding out guns because it makes those who have been lulled into a false sense of security by the relative peace and safety of our time consider open carry “old fashioned” or odd. The decades of shame for having the audacity to carry a gun, especially where people can see it, needs to take its place on Boot Hill.
This debate between open carry and concealed carry is pointless. Among armed Americans, it is a matter of personal preference, comfort, and situation. Legally, hoplopaths have and will offer up open carry as an "alternative" because they are afraid if concealed carry is respected as a full constitutional right, it will lead to more people carrying. Open carry can be the "out" for the justices, who know full well leftist legislatures like California and Hawaii will never implement it. Perhaps someday soon the Supreme Court will call the leftists' bluff and affirm that bearing arms "shall not be infringed."
Clayton E. Cramer
Gun Free Zone
The War on Guns
The View From Out West