Van Hollen: Open carry yes, just don't bark or brandish

There has long been debate in the state of Wisconsin over the legality of openly carrying a firearm. Our Supreme Court has already ruled on the matter of concealed carry, and determined that the current ban does not violate the state constitution. But in cases wherein a person who was openly carrying a legally registered gun was arrested and charged with disorderly conduct, things have been a little murky.

So it was perhaps understandable that Attorney General J.B. Van Hollen would issue a memorandum addressing this very issue, in the hopes of clearing up some of that legal gray area.

Only, I can't quite tell if he actually managed to do that. You can read the memo here (.pdf). The gist of the note is that Van Hollen asserts the legality of open carry in the state--which we already knew. In trying to decide whether the act of open carry constitutes "disorderly conduct" or not, however, he wanders around a bit before essentially deciding that "it depends."

Which is, y'know, fair enough and all, but wasn't the point of the memo supposed to be to lay out some more solid guidelines?

The illustrious Illusory Tenant lays it out nicely for us:

Van Hollen continues:

The same concepts should apply to handguns. The state constitutional right to bear arms extends to openly carrying a handgun for lawful purposes. . . . If, however, a person brandishes a handgun in public, the conduct may lose its constitutional protection.

Now I'm lost. Perhaps the concept has remained the same, but the facts are altered dramatically for more easily portable weaponry.

"Brandish" means "wave or flourish as a threat or in display," the least disorderly of which would be "flourishing in display."

To flourish is to make an ostentatious gesture, the determination of which ostentation, I suspect, could be wildly subjective...

So a Wisconsinite may, with impunity, stiff-arm a cocked and loaded (but non-ostentatious) handgun up and down Water St. of a Friday evening so long as she doesn't "bark" at the other pedestrians?

Somehow I doubt it.

If anything, Van Hollen's memo succeeded only in maintaining the status quo. We already knew that open carry was legal in Wisconsin, and the only big problem is that many law enforcement officials slap disorderly conduct charges on people for the mere act of doing just that.

Personally, I'm not entirely comfortable with people being allowed to just march around on public property with a handgun strapped to their side (I have far less of a problem with hunting rifles), and suspect the whole issue could be cleared up by disallowing that entirely--but I'm also realistic enough to understand that that's not likely to happen any time soon.

So in the meantime, it would be wise to decide what does and does not actually constitute disorderly conduct. Mowing the lawn with your legally registered firearm holstered to your person? Being that you're on your own property, I would definitely agree that that's hardly disorderly. But when someone takes a piece out into the public sphere? Kind of ridiculous and, I would agree, worthy of some attention by police.

Gun rights advocates, like John Pierce, a founder of OpenCarry.org, often argue that the act of open carry is a political one, done to make a point: "People who open carry do not do so to get attention. They do so to make a political point, in many cases, just like a same sex couple going out of their way to hold hands in public."

First of all, you have to go way more out of your way to carry a gun than to hold someones hand, and same-sex PDA on its own cannot be used as a weapon in an argument or lead to someone getting accidentally shot. So I'm not entirely sure the two are exactly analogous.

Secondly, if "people who open carry do not do so to get attention," then they're naive. Lugging around a weapon will always draw attention to yourself, whether it's a handgun, a rifle, or a sword. To think otherwise is just silly. But I believe him when he says that it's also done to make a political point, and in Wisconsin, they have that right.

Just as our police have the right to ask them a few questions about what they're doing packing while shopping at Menards.

It seems like what this comes down to is the need for more discretion--by both sides--and far clearer language in the law. Not just a memo.

(photo by barjack on Flickr)