The Second Amendment of the Constitution secures a citizen’s right to keep and bear arms. There are many who take this protection very seriously. The Second Amendment has been interpreted by the Supreme Court many times and is the subject of many legislative acts. The Michigan Constitution in its Declaration of Rights also states that:
“Every person has the right to keep and bear arms in defense of himself and the state.”
The State of Michigan forbids carrying a firearm that is concealed without a state authorized concealed pistol license (CPL). Conversely, the state does not prohibit a person from carrying a firearm in the open and not concealed, provided that the person obtained a license to purchase and possess the firearm.
This license is different than the permit required to possess a concealed pistol. Our state legislature has chosen to honor the Second Amendment with the open carry law. Therefore, if a person has obtained a firearm by receiving a permit to purchase a firearm or purchased a firearm from a federally licensed firearms dealer, that person can openly carry that firearm.
Not everyone may receive a license to openly possess and carry a firearm. Licensees must:
- not be the subject of a Personal Protection Order,
- be 21 years of age or older, and
- must be a legal resident of this state.
Further, they must not be prohibited from possessing a firearm due to a prior specified felony conviction.
When a weapon is concealed, lawmakers say, the person carrying it is more dangerous and their right to carry must be pre-authorized. The person must not be a felon, drug addict or have a history of, or is likely to commit, unlawful violence.
Open or Concealed Carrying Exclusions
There are exceptions to the open carry law. Michigan law excludes persons from carrying an open or concealed weapon in the following places:
- an establishment that sells alcohol
- a financial institution or bank
- a church
- a theater
- a sports arena
- a hospital or day care center
An exception exists in the above establishments in the event that a person received the express permission from the owner, or owner’s agent (manager) of the establishment. That permission does not necessarily have to be in writing.
Prosecution of Elijah Woody for CCW
On September 21, 2014, 24 year-old Elijah Woody was arrested in Detroit for carrying a concealed weapon despite having his Glock 40 caliber in a holster, on his hip in plain view, according to Mr. Woody. Mr. Woody is a member of the gun rights group the Hell’s Saints. This arrest has brought open carry advocates to publicly protest the charges. As long as Mr. Woody was licensed to purchase the specific firearm and was openly carrying it, he was within his legal right to do so. This leads to the question as to whether he was “openly carrying” the weapon.
In other words, was the weapon even partially concealed? This is a question of fact and subject to interpretation by the arresting police officer who may have had a reason, possibly subjective and unreasonable, to believe Mr. Woody’s weapon was concealed. Concealment is exists when the weapon is, “not discernible by the ordinary observation of [those] coming in contact with [the accused], casually observing him, as people do in the ordinary and usual associations of life.”
Plainly, if a person looks as if they are attempting to hide the weapon to a plain and reasonable observer, even if not completely concealed, it is considered concealed. For instance, if a shirt is worn over the weapon that allows the weapon to be hidden occasionally, it can be construed as concealed. To open carry, the weapon cannot be concealed in any way or fashion. It should not be hidden, even in a small way, behind a shirt, jacket or object. Possessing a concealed weapon without a permit is a five (5) year felony.
Police say that Woody was wearing an oversized jacket that was tucked in behind the handgun but that also folded over the gun and partially concealed it. Ultimately, his attorney should be able to get the felony dismissed by negotiating with the Wayne County Prosecutor.
If not, a jury might be deciding whether the weapon was partially concealed in violation of the law. Police also say they discovered marijuana in Woody’s possession, which is the reason they were investigating him.
Brandishing a Firearm
Openly carrying a firearm should be distinguished from brandishing a firearm, which is unlawful. Brandishing means to defiantly wave or flourish menacingly the firearm or to display ostentatiously, which is defined as a vulgar or pretentious display or designed to attract specific attention.
Further, if a person has a CPL, they still have the right to carry their weapon openly. If Woody had a CPL, he would not have been arrested.
Attorney Morris has enjoyed a very successful and distinguished career as a trial lawyer providing high quality legal representation in the area of state and federal criminal defense for 20 years. He is known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he is dedicated to attaining justice in every case, and is prepared to take on complex legal issues with success. Barton and his law firm pride themselves on obtaining results for their clients that other attorneys cannot.
Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. Barton Morris is also a board member of several distinguished legal associations including the Michigan Association of OWI Attorneys, and the DUI Defense Lawyer’s Association Justice Foundation. He is also an active member of the National Association of Criminal Defense Attorneys and has also graduated from their National Criminal Defense Trial College in Macon, Georgia.
Barton Morris was chosen as a Top Lawyer of Metro Detroit for 2012, 2013, 2014, 2019 and 2020 for DUI/DWI and criminal defense by DBusiness Magazine and Hour Magazine. Barton Morris was also chosen as a Super Lawyer in Criminal Defense for 2014-2020 and Barton Morris is the only Lawyer in Michigan designated by the American Chemical Society as a “Forensic Lawyer-Scientist”