Open carry advocates in Texas have not been shy lately in exercising their rights to carry long rifles in public. One such advocate—Beaumont gun shop owner Derek Poe—was so not-shy that he strapped his AR-15 semiautomatic rifle to his back as he walked through Parkdale Mall (where his store is located) on his way to GameStop.
While Poe’s gun is legal, and openly carrying long rifles in Texas is legal, Poe was nonetheless cited by police for carrying the weapon through the mall.
Police have charged him with disorderly conduct because he displayed a firearm “In a manner calculated to alarm.”Poe disagrees saying his rifle was facing barrel down on his back and his hands weren’t even on the gun.“It was clearly obvious I didn’t have criminal intent. I had a drink in one hand and a bag in the other. I didn’t commit a crime. I legally carried a long arm in Texas,” Poe said.
Poe’s argument might sound convincing on its face, but no less a strict constructionist of the U.S. Constitution than Supreme Court Justice Antonin Scalia—whose support for conservative causes falls somewhere in the realm of “absolute”—gave an interview in 2012 that suggests that “criminal intent” isn’t necessarily the line over which someone carrying a semiautomatic rifle in public must cross to be breaking the law.
Specifically, when speaking to Fox News in July 2012, Scalia referred to an 18th century tort about “afrighting,” or carrying weapons with the intent to frighten people.
“Some [limits] undoubtedly are [permissible], because there were some that were acknowledged at the time” the Constitution was written, he said.
He pointed to a law at the time against what was called afrighting, “which, if you carried around a really horrible weapon just to scare people, like a head ax or something, that was, I believe, a misdemeanor,” Scalia said.
Presumably there were Second Amendment advocates in the late 1700s who believed that if only criminals carried head axes in public, everyone would be less safe, but this law held up even when the framers of the Constitution had the chance to weigh in. The question today of whether or not an AR-15 is the contemporary equivalent to a head ax, meanwhile, remains open to debate.
It’s also debatable whether or not frightening people is part of the point in open carry demonstrations. Advocates claim that it’s not, but the glee with which, say, the people who run the @OpenCarryTexas Twitter account respond to those who express alarm when they see a gun in public calls that into question. If scaring people with different opinions isn’t explicitly the open carry movement’s point, they nevertheless seem to regard it as a fringe benefit.