Some Kansas cities and the Libertarian Party are locked in a dispute, as you may know, over whether cities can legally prohibit people from openly carrying loaded weapons in public places. The party says an open-carry ban would violate both the U.S. and Kansas constitutions and state law.
They may be right on the law, but the constitutional picture is cloudier. Let’s see why.
Kansas has guaranteed an individual the right to possess weapons since its founding more than 150 years ago. The state’s original constitution included this: “The people have the right to bear arms for their peace and security.”
Curiously, however, late 19th century Kansans interpreted that language rather loosely. Dodge City, Wichita, and Abilene openly restricted firearms possession, and in 1905 the Kansas Supreme Court upheld a Salina gun control law by finding no individual right to carry a weapon.
“It was the safety and security of society that was being considered when this provision was put into our constitution,” the court ruled.
Winds blow and laws change, of course. In 2010, Kansas voters amended their constitution to more firmly create an individual right to bear arms, and the same year the U.S. Supreme Court said the U.S. Constitution contains a similar guarantee.
But conservative Justice Antonin Scalia, writing for the majority, made a crucial point: “No fundamental right — not even the First Amendment — is absolute,” he wrote.
Exactly. I can’t knowingly lie about you in the newspaper, despite the guarantee of a free press, or shout “fire” in a crowded theater even though I enjoy free speech.
In fact, virtually every freedom protected in the Constitution — religion, assembly, trial by jury, self-incrimination, search and seizure — involves some restrictions.
The same logic applies to gun rights. There is an individual right to own and carry a weapon, but it isn’t absolute.
The real debate is over the Kansas gun law, not the two constitutions. And all sides agree Kansas law allows cities and counties to regulate the “manner” in which loaded guns are openly carried, even if they can’t be completely banned.
So here’s an idea: Cities worried about open weapons should require loaded gun-carriers to use holsters the public can clearly see. I’m thinking holsters dyed in blaze orange or fluorescent yellow.
Brightly-colored holsters would allow the public to immediately know, at a safe distance, who’s carrying a loaded weapon. And gun rights advocates couldn’t object, because their weapons aren’t meant to be concealed. The color of the holster wouldn’t affect the weapon’s operation, and Kansas law already requires deer hunters to wear orange. For safety.
Sounds like a plan the burghers in Dodge City might recognize, and the rest of Kansas, too.