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 Post subject: What Allows Us To Open Carry?
PostPosted: Tue Mar 18, 2008 2:22 pm 
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Location: Bear, Delaware
Code:
Delaware State Constitution
Article I.
§ 20. Right to keep and bear arms.
A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.


Code:
Delaware Criminal Code
Title 11, Part I, Chapter 2. General Provisions Concerning Offenses
§ 202. All offenses defined by statute.
(a) No conduct constitutes a criminal offense unless it is made a criminal offense by this Criminal Code or by another law.

(b) This section does not affect the power of a court to punish for civil contempt or to employ any sanction authorized by law for the enforcement of an order or a civil judgment or decree.

----------------------------------------------------------

Because Delaware state law only regulates the carrying of a concealed deadly weapon, the open carry of a firearm is lawful. As stated by former Delaware Attorney General Charles M. Oberly, III, "Under current Delaware law, virtually anyone, excepting felons, may strap on a holster and carry a gun in plain view. You can even carry a rifle over your shoulder and walk around with it."

Argument has been made that law enforcement could arrest a person for Disorderly Conduct; however, the statute reads as such:

Code:
Title 11, Part I, Chapter 5, Subchapter VII. Crimes Against Public Health, Order
and Decency
§ 1301. Disorderly conduct; unclassified misdemeanor.
A person is guilty of disorderly conduct when:
(1) The person ***intentionally*** causes public inconvenience, annoyance or alarm to any other person, or creates a risk thereof by:
a. ***Engaging in fighting or in violent, tumultuous or threatening behavior***; or
b. Making an unreasonable noise or an offensively coarse utterance, gesture or display, or addressing abusive language to any person present; or
c. Disturbing any lawful assembly or meeting of persons without lawful authority; or
d. Obstructing vehicular or pedestrian traffic; or
e. Congregating with other persons in a public place and refusing to comply with a lawful order
of the police to disperse; or
f. ***Creating a hazardous or physically offensive condition which serves no legitimate purpose***; or
g. Congregating with other persons in a public place while wearing masks, hoods or other
garments rendering their faces unrecognizable, for the purpose of and in a manner likely to
imminently subject any person to the deprivation of any rights, privileges or immunities secured by the Constitution or laws of the United States of America.
(2) The person engages with at least 1 other person in a course of disorderly conduct as defined in subdivision (1) of this section which is likely to cause substantial harm or serious inconvenience, annoyance or alarm, and refuses or knowingly fails to obey an order to disperse made by a peace officer to the participants.


However, the emphasis, added by myself requires intent to cause alarm. In addition to that intent, a person must also exhibit one of the behaviors defined in a-g. The two relevant subsections (a) requires threatening behavior, which the peaceable carrying of firearms is not and (f), creating a hazardous condition without a legitimate purpose -- as stated in the Constitution of the state of Delaware, self-defense is a legitimate purpose in our view.

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 Post subject: Re: What Allows Us To Open Carry?
PostPosted: Thu Mar 20, 2008 2:04 pm 
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This is a great post, and I agree w/ the logic 100%. If I may add my 2¢:

The Constitution grants us the right to self defense, and the Criminal Code indirectly states that open carry is lawful. As long as it's 100% OPEN (i.e. not concealed, even a little bit), it's perfectly lawful.

The normal act of carrying a firearm is NOT disorderly conduct. By "normal" I mean you're not touching it, fiddling around w/ it, etc. Which is why a proper fitting belt/holster combination is crucial. If you have to constantly pull your belt up, and/or adjust your holster/gun, THAT in and of itself may freak someone else out. All it takes is one phone call from a "concerned citizen" about a "man w/ a gun acting suspiciously" and you could get an unexpected (and possibly unfriendly) welcome from the police.

As long as you carry yourself professionally, "act" like you should have a gun in the first place, know the law, and know WHY you carry it, then everything will be grand.

:pbjtime: <--- He's happy because he can OC in DE, and it's all good.

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 Post subject: Re: What Allows Us To Open Carry?
PostPosted: Mon Mar 31, 2008 9:09 am 
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dave_in_delaware wrote:
The Constitution grants us the right to self defense, and the Criminal Code indirectly states that open carry is lawful. As long as it's 100% OPEN (i.e. not concealed, even a little bit), it's perfectly lawful.


Just as a point of order, § 1442 is not a strict liability offense, e.g., the state must prove intent, knowledge or recklessness under § 251(b) (Upshur v. State, 420 A.2d 165 (Del. 1980)).

So, I would argue... where someone was opening carrying during the winter and they put on a heavy jacket, intent or knowledge could be proved. The more relevant to us here, as law-abiding citizens, would be our shirt coming untucked or some other piece of clothing partially concealing our weapon and law enforcement taking issue with it. Yes, it is accidental; however, it's my opinion that recklessness could be argued for scienter.

Here's part of the definition for 'Recklessly': "A person acts recklessly with respect to an element of an offense when the person is aware of and consciously disregards a substantial and unjustifiable risk that the element exists or will result from the conduct."

So, if you wore a very baggy shirt, I'm sure that a zealous prosecutor could make the charge stick.

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 Post subject: Re: What Allows Us To Open Carry?
PostPosted: Sat Jul 05, 2008 8:08 am 
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So like Mom always told us... tuck in your shirt!

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 Post subject: Re: What Allows Us To Open Carry?
PostPosted: Sat Jul 05, 2008 8:53 am 
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A Disorderly Conduct charge is a misdemeanor offense correct?? Not that I'm hoping I get one, but I think it would be easier to fight than a felony charge

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 Post subject: Re: What Allows Us To Open Carry?
PostPosted: Sat Jul 05, 2008 9:45 am 
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Correct: http://delcode.delaware.gov/title11/c00 ... ml#P16_236

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 Post subject: Re: What Allows Us To Open Carry?
PostPosted: Thu Jun 30, 2011 5:15 pm 
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Because Delaware state law only regulates the carrying of a concealed deadly weapon, the open carry of a firearm is lawful. As stated by former Delaware Attorney General Charles M. Oberly, III, "Under current Delaware law, virtually anyone, excepting felons, may strap on a holster and carry a gun in plain view. You can even carry a rifle over your shoulder and walk around with it."



So does anyone really think this is a good idea. I would love to but the cops are really going to have a field day with that.

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 Post subject: Re: What Allows Us To Open Carry?
PostPosted: Thu Jun 30, 2011 6:32 pm 
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willyb1972020 wrote:
So does anyone really think this is a good idea. I would love to but the cops are really going to have a field day with that.
Which part are you talking about?

Open Carrying in general? Yes, it is a good idea, as everyone on this site probably believes so.

OCing a rifle? That's a bit trickier. I'd expect MAJOR harrassment and encounters with the police if I was OCing a rifle.

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 Post subject: Re: What Allows Us To Open Carry?
PostPosted: Thu Jun 30, 2011 6:46 pm 
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There have been some people who have OC a rifle. There are more than a few youtube videos of this too.





BTW does this thread now hold the sites necropost record?

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 Post subject: Re: What Allows Us To Open Carry?
PostPosted: Thu Jun 30, 2011 6:50 pm 
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Sorry yes i was talking about OCing a rifle I OC myself.

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