manta49 said:
So a police officer see someone carrying a gun how is he supposed to know if he is carrying it legal or not without asking him. ? If he or anyone with a bit of common sense would identify them salves. Incidents like this only put the police and public of open carry.
Well, the short answer is, "He's not."
You and Husqvarna and other Europeans have not lived subject to the freedoms (supposedly) guaranteed by our Constitution. One of those is that we are legally presumed to be innocent until proven guilty. More specific to this discussion, however, is the 4th Amendment. A few years after the adoption of the original Constitution, the founders of this country adopted a set of ten amendments that are together known as the Bill of Rights. The 2nd Amendment, which (supposedly) guarantees our right to keep and bear arms, is one of these ten amendments. So is the 4th Amendment, which reads:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Demanding identification without "probable cause" that a person may have committed a crime is considered to be an "unreasonable" search and seizure. Several decades ago there was a landmark legal case that went to the Supreme Court. The case was
Terry v. Ohio. Although the Supreme Court actually ruled against poor Mr. Terry, the written decision very firmly clarified when a police office may or may not stop and interrogate a potential suspect.
As has been commented, it is not sufficient for a police officer to have a "hunch" that someone may be up to no good. In the language of the Supreme Court, the officer must have "a reasonable suspicion,
based on clearly articulable facts, that a crime has been committed, is being committed, or is about to be committed." The court specifically and explicitly stated that a "mere hunch" is NOT sufficient.
What I think you Europeans overlook is that, in most (not all) of our states it is legal to openly carry a firearm. In those states where it is legal, the mere fact that you see someone openly carrying a handgun in no way offers anything whatsoever to suggest that he or she is breaking the law. Thus, absent other contributing facts that might pass court scrutiny as being enough to establish a "reasonable suspicion based on clearly articulable facts," a police officer would have no legal justification for stopping an open carrier.
However, as has been noted, this varies by state. Some states allow open carry only with a carry license, and some of those states further require the licensee to show the license upon demand. Where it gets interesting is the states where this is written as "upon
lawful demand," which leaves room for plenty of potential both for abuse and for litigation for unlawful detention.
You used the analogy of driving a car and needing a driver's license, but that analogy fails on multiple fronts. First, operating a motor vehicle is a privilege, it is not a right. Second, it requires a license in every state. In many states, open carry does NOT require any license. Lastly, our courts have ruled that police may NOT stop cars at random just to ask if the driver has a license. If they aren't allowed to randomly stop people engaging in what is ONLY a licensed privilege, why should they be allowed to stop people who are engaging in a Constitutional right, which may not even require a license?
