When Illinois lawmakers reluctantly adopted a “shall issue” concealed carry law a decade ago in an attempt to keep the issue away from the Supreme Court, they kept the state’s ban on open carry in place. The state Supreme Court will soon decide if that prohibition is constitutional or not, in a case brought forward by a man sentenced to 30 months in state prison for having a gun in his car without a carry license. 

Tyshon Thompson doesn’t have a high-powered attorney or veteran Second Amendment litigator representing him. Instead, it was public defender Eric Castaneda who argued that Thompson’s conviction was unjust and the state’s ban on open carry unconstitutional during oral arguments on Tuesday. 

“Here, Mr. Thompson was convicted under a statute that completely prohibits the public open carry of a firearm in Illinois and that punishes the failure to undergo a double licensing regime under the [Concealed Carry License] Act,” he said. 

Castaneda said Illinois law violates recent U.S. Supreme Court precedent on Second Amendment rights.

“We think that concealed carry and open carry are two categorically different conducts, one which is protected under the Second Amendment and the other which is not,” he said. “So the government can regulate concealed carry, you know, as it pleases. But the same doesn’t apply for open carry.”

Not to throw undue shade on Castaneda, but the proposition that either open carry or concealed carry isn’t protected under the Second Amendment is a strange one. The text of the Second Amendment doesn’t specify how the right to bear arms must be exercised, only that it’s a right of the people. 

The real question is whether a state (or the federal government, for that matter) can completely ban one form of carrying, so long as it allows arms to be borne in some form or fashion. At the time of the Founding and for much of the 19th century, open carry was the norm and concealed carry was the exception. Today the opposite is true. Most folks carrying for self-defense choose to keep their firearm concealed, even in the vast majority of states that don’t require a license or permit when guns are carried openly. 

Assistant Attorney General Garson Fisher, representing the state before the Illinois Supreme Court, offered a strange argument of his own when he contended that Thompson’s “unlicensed carriage of firearms when the licensed carriage of a firearm is readily available to all ordinary law-abiding citizens, is not covered by the plain text of the Second Amendment.” 

Again, the text of the Second Amendment says nothing about the manner of carrying, only that we have the right to do so. And until the early 20th century, carry licenses weren’t really a thing. While the Supreme Court has given the green light to “shall issue” carry regimes, the Court hasn’t said anything about the ability to open carry without a license or permit, which again is the law in the vast majority of states. Heck, at this point permitless carry in general is the standard in more than half the country, so Fisher’s argument that unlicensed carry falls beyond the scope of the Second Amendment is truly bizarre. 

Given the liberal bent of the Illinois Supreme Court, however, I wouldn’t be surprised if his theory ends up being supported by a majority of the justices. I suspect the Court will uphold Thompson’s conviction, though it might inform the state of Illinois that it must allow for both open and concealed carry with a permit. A decision like that would be a small victory for gun owners generally (though not for Mr. Thompson specifically), and that may be the best we can hope for in a state that refused to acknowledge any right to carry until 2013.