Tuesday, March 5, 2013

Is open carry of a firearm the same as brandishing?

The Utah Legislature is well into its 2013 session. On the agenda are some pro-gun and some anti-gun bills. As is their right, there have been several pro-gun citizens in attendance at some of the committee meetings where these bills are being considered. There also have been some pro-gun rallies on the Capitol steps. Some of these activists have openly carried firearms -- both handguns and long guns. Open carry is perfectly legal in this state. In fact, when visiting the Utah Capitol Building myself, I have seen legislators and their staff openly carrying firearms themselves.

Of course, I have some opinions about these gun bills and have written to the governor and to my legislators about what to support and what to oppose. For example, on 22 February I wrote to my legislators about HB.76 (Concealed Weapon Carry Amendments):
I am deeply concerned that Governor [Gary] Herbert is wobbly-kneed on protecting our state and federal Constitutions. A few hours ago, he commented on HB.76 saying, "Background checks ought to be a part of the process. We ought to keep them out of the hands of criminals, of those who are mentally unstable. It doesn't matter if it’s an assault weapon or a .22-caliber handgun. They shouldn't have them."
I've read HB.76 several times. I fail to understand how the above comment relates to HB.76 -- how does HB.76 nullify federal and state laws which prohibit irresponsible people from possessing firearms? How does forcing good people pay for a background check to exercise a constitutionally-guaranteed right stop bad people from buying or using a gun without a background check? More to the point of the governor's statement, how does HB.76 put guns in the hands of irresponsible people?
Like you, Governor Herbert swore an oath to both the Utah and US Constitutions. Please hold him to that oath. Both Constitutions specifically prohibit any infringement of the right to arms. The requirement to submit to a background check and to pay a fee in order to get government permission to exercise a constitutionally-protected right is an unacceptable violation of both Constitutions and must be rescinded!
I urge you to do everything you can to ensure that HB.76 is passed with an overwhelming veto-proof majority.
One of my legislators answered:
If this bill makes it to the senate I will vote for it. The sponsor is concerned by some of the people who showed up to the committee hearing basically acting very abusively and derogatory while brandishing weapons. This type of behavior just hurts our efforts to protect gun rights. (Emphasis mine)
I was surprised by his report of "brandishing." Merriam-Webster defines brandish as "to shake or wave (as a weapon) menacingly" or "to exhibit in an ostentatious or aggressive manner".

The word brandish isn't used in Utah gun law. Instead, what Utah law (76-10-506) says is that
a person who, in the presence of two or more persons, draws or exhibits a dangerous weapon in an angry and threatening manner or unlawfully uses a dangerous weapon in a fight or quarrel is guilty of a class A misdemeanor.
That section also says,
As used in this section, "threatening manner" does not include...the possession of a dangerous weapon, whether visible or concealed, without additional behavior which is threatening.
I've seen news reports confirming that some gun-rights advocates wore or carried their firearms openly while attending recent committee meetings related to gun rights. If there truly was some brandishing of arms, that would have been unlawful -- why was no one arrested? In most cases, such open-carry seems a bit silly and counterproductive to me. I agree with my legislator that it "hurts our efforts to protect gun rights" -- especially when trying to influence a person as fickle on this Constitutionally-guaranteed right as Governor Herbert. But, open-carry hardly meets Merriam-Webster's definition of brandishing nor is it the equivalent of brandishing as expressed in 76-10-506.

Using the word "brandishing" to describe a lawful, but silly, behavior in the capitol building is a bit extreme. In my opinion, whoever told my legislator that people were brandishing firearms does not understand (or choses to ignore) the meaning of the word and has lost credibility on the issue of gun rights. My legislator and/or his source(s) need to be more careful in choosing words because words have meanings.

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