I continue blogging excerpts from my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, which is forthcoming in a few months from the UCLA Law Review. The article is quite long, so I thought I’d just blog some excerpts; if you’re interested in the broader framework the article discusses (a framework that separates the inquiry into the scope of the right based on its text, original meaning, and history, the burden that the restriction imposes on the right, the reducing-danger arguments for the restriction, and the government’s proprietary role [if that’s present]), please follow the link. Also, please remember: Not all unwise laws are unconstitutional laws, even where constitutional rights are potentially involved.
Heller stated that bans on concealed carry of firearms are so traditionally recognized that they must be seen as constitutionally permissible. This tradition does indeed go back to 1813 and the following decades, at least in some Southern states, and by the end of the 19th century it had become a pretty broadly accepted proposition. A smattering of state court cases has struck down such bans, but nearly all courts have upheld them, and many state constitutions expressly authorize them.
The same cannot, however, be said about general bans on carrying firearms in public, which prohibit open carrying as well as concealed carrying. Heller expressly concluded that “the right to ... bear arms” referred to carrying arms. Ten state constitutions strongly imply this, by protecting “bear[ing] arms” but expressly excluding “carrying concealed weapons.” (See Colo. Const. art. II, § 13; Idaho Const. art. I, § 11; Ky. Const. § 1; La. Const. art. I, § 11; Miss. Const. art. III, § 12; Mo. Const. art. I, § 23; Mont. Const. art. II, § 12; N.M. Const. art. II, § 6; N.C. Const. art. I, § 30; Okla. Const. art. II, § 26; see also Tenn. Const. art. I, § 26 and Tex. Const. art. I, § 23, authorizing the legislature to “regulate the wearing of arms with a view to prevent crime,” which suggests that “bear[ing] arms” includes “wearing” them, which is to say carrying them in public, though subject to regulations.)
Other constitutions don’t mention carrying as such, but they do use the word “bear.” And many courts applying state constitutional provisions have held or suggested that carrying in public is generally constitutionally protected, at least outside some special places such as businesses that serve liquor, churches, or polling places, though some courts have disagreed.
For cases or attorney general opinions holding or suggesting that there is a right to carry openly, see State v. Reid, 1 Ala. 612, 617 (1840), reaffirmed, Isaiah v. State, 58 So. 53, 55 (Ala. 1911); Dano v. Collins, 802 P.2d 1021 (Ariz. Ct. App. 1990), review granted but later dismissed as improvidently granted, 809 P.2d 960 (Ariz. 1991); Nunn v. State, 1 Ga. 243 (1846), reaffirmed, Strickland v. State, 72 S.E. 260, 264 (Ga. 1911); In re Brickey, 70 P. 609 (Idaho 1902); Holland v. Commonwealth, 294 S.W.2d 83, 85 (Ky. 1956) (dictum); State v. Chaisson, 457 So. 2d 1257 (La. Ct. App. 1984); City of Las Vegas v. Moberg, 485 P.2d 737 (N.M. Ct. App. 1971); State v. Kerner, 107 S.E. 222 (N.C. 1921); State v. Nieto, 130 N.E. 663, 664 (Ohio 1920) (dictum); Glasscock v. City of Chattanooga, 11 S.W.2d 678 (Tenn. 1928); La. Atty. Gen. Op. No. 80-992. For cases holding the right extends even to carrying a concealed weapon, though perhaps regulated through a nondiscretionary licensing regime, see Kellogg v. City of Gary, 562 N.E.2d 685 (Ind. 1990); Schubert v. DeBard, 398 N.E.2d 1339 (Ind. Ct. App. 1980); Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (Ky. 1822), abrogated as to concealed carry but not as to open carry by Ky. Const. of 1850, art. XIII, § 25; State v. Rosenthal, 55 A. 610, 611 (Vt. 1903); State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139 (W. Va. 1988). Chaisson struck down a very limited carrying ban -- one that applied only while hunting frogs at night -- but its reasoning suggested that there was a constitutional right to carry for self-defense (including self-defense against alligators). City of Lakewood v. Pillow, 501 P.2d 744 (Colo. 1972), also struck down a carry ban, but because it was broad enough to ban gun stores, ban people “from transporting guns to and from such places of business,” and ban people from “possess[ing] a firearm in a vehicle or in a place of business for the purpose of self-defense”; the court concluded that “[s]everal of these activities are constitutionally protected,” which suggests that carrying in a car might have been protected. This is consistent with the Colorado right to bear arms’ express exclusion of “the practice of carrying concealed weapons,” which suggests that carrying weapons unconcealed would be presumptively protected. Colo. Const. art. II, § 13.
Oregon courts take the view that the right extends to carrying weapons openly, but allows restrictions on carrying loaded guns, so long as the law allows the carrying of both an unloaded gun and ammunition. See State v. Barnett, 695 P.2d 991, 991 (Or. Ct. App. 1985) (striking down total ban on carrying blackjacks); State v. Delgado, 692 P.2d 610, 614 (Or. 1984) (striking down total ban on carrying switchblade knives); State v. Boyce, 658 P.2d 577, 578 (Or. Ct. App. 1983) (upholding requirement that handguns be carried unloaded).
For cases concluding there is no right to carry, see City of Cape Girardeau v. Joyce, 884 S.W.2d 33 (Mo. Ct. App. 1994); City of Akron v. White, 194 N.E.2d 478, 479–80 (Ohio Mun. Ct. 1963); Pierce v. State, 275 P. 393 (Okla. Crim. App. 1929); Commonwealth v. Ray, 272 A.2d 275, 279 (Pa. Super. Ct. 1970); Mosby v. Devine, 851 A.2d 1031, 1043 (R.I. 2004); Masters v. State, 685 S.W.2d 654 (Tex. Ct. Crim. App. 1985); State v. Cole, 665 N.W.2d 328, 337 (Wis. 2003); see also In re Bastiani, 2008 WL 5455690, *2 (N.Y. Cty. Ct.) (applying Second Amendment). But see Cockrum v. State, 24 Tex. 394, 402–03 (1859) (taking the view that the right to bear arms includes the right to carry them); Galloway v. State, 69 S.W.2d 89,90 (Tex. Ct. Crim. App. 1934); Mowels v. State, 211 S.W.2d 213 (Ct. Crim. App. 1948).
Such protection, of course, makes sense when the right is (at least in part) a right to keep and bear arms in self-defense: Often, people need to defend themselves against robbers, rapists, and killers outside the home and not just in the home. Two-thirds of all rapes/sexual assaults, for instance, happen outside the victim’s home, and half happen outside anyone’s home. The percentages are even greater for robberies and assaults. The ability to defend yourself at home is no substitute for the ability to defend yourself wherever you are. So a ban on carrying weapons outside the home -- especially in places that one practically needs to frequent, such as the streets on the way to work or to buy groceries -- is a serious burden on the right, more so than the ban on handgun possession struck down in Heller (which would have at least left open some possibility of self-defense with shotguns or rifles).
Some states ban unlicensed carrying of loaded weapons, even when they are carried openly, but allow the carrying of unloaded weapons. A few court decisions have upheld such laws on the grounds that they let a would-be defender carry both the weapon and ammunition, and load it when needed. But seconds count when one is attacked, especially in public, where one might not have the warnings that some defenders will often have in the home (the breaking window, the barking dog, the alarm). While loading a gun may take only several seconds, especially if the ordinance allows the carrying of loaded magazines so long as the magazine is outside the weapon, those will often be seconds that the defender doesn’t have.
So these laws are substantial burdens on the right to defend oneself, and carrying arms is within the scope of the right, alongside home possession. The question is whether bans on carrying can be justified on a rationale that they avert so much danger that the restriction on self-defense is an acceptable price to pay. I don’t believe they can.
To begin with, bans on carrying loaded weapons that let people carry ammunition as well as a gun seem unlikely to avert much danger. An enraged driver could often quickly load a weapon, even while driving. A would-be armed robber could load a weapon in seconds before going into a liquor store, so that he won’t be committing a gun crime pretty much until he’s actually committing the robbery itself. And while a ban on loaded carry might avert some gun accidents, it seems to me that preventing gun accidents -- which are over ten times less common than deliberate gun injuries -- would not justify such a serious loss of self-defense rights.
Bans on carrying loaded weapons that require people to carry the guns or ammunition in locked cases might do more to prevent road rage killings, or to increase the chances that a would-be gun criminal is caught after he removes the gun from a locked case but before he is about to use it. But they seem unlikely to do much about the bulk of gun crime, which is committed by criminals who ignore gun laws just as they ignore other laws and who are unlikely to be stopped and arrested for a gun law violation by the police before the crime is committed. And they would essentially deny people the ability to defend themselves in public places using firearms -- the tools that are likely to be the most effective for self-defense, and that the criminal attackers are already likely to possess.
That seems to me to be an unacceptable burden on a constitutionally protected right, even if one in principle accepts some power to substantially burden self-defense in order to reduce danger of crime or injury: As the National Academy of Sciences and Centers for Disease Control reports suggest, a regime in which pretty much all law-abiding citizens can get licenses to carry concealed guns has not been shown to cause any increase in net crime or death. Even Philip Cook, probably the leading American pro-gun-control criminologist, takes the view that “Whether the net effect of relaxing concealed-carry laws is to increase or reduce the burden of crime, there is good reason to believe that the net [change] is not large,” and that concealed carry permit holders “are at fairly low risk of misusing guns, consistent with the relatively low arrest rates observed to date for permit holders.” This should be at least as true as to a regime that allowed open carry, perhaps with a nondiscretionary licensing scheme (much like the nondiscretionary licensing scheme that Cook is discussing when he refers to concealed carry permit holders).
This having been said, I must acknowledge that my guesses about the degree to which such laws block lawful and effective self-defense, and the degree to which they prevent criminal attacks, are indeed just guesses. I’ve read a lot of criminological work on guns, and I designed and four times taught a seminar on firearms regulation policy, which mostly focused on the criminological data. But still an educated guess is all I see available in this field.
My inclination in such situations is to defer to the constitutional judgment embodied in the right to bear (not just to keep) arms, and more broadly to a presumption that people should be free to have the tools they need for self-defense until there is solid evidence that possession of those tools will indeed cause serious harm. And, as I noted above, many courts have taken the same view by holding that there is a constitutional right to openly carry weapons, and Heller’s discussion of the phrase “keep and bear” points in the same direction. Still, I expect that this will be a major area of debate in courts in the coming years. Bans on Concealed Carry, Revisited: To be sure, any discussion of open carry rights has a certain air of unreality. Carrying openly is likely to frighten many people, and to lead to social ostracism as well as confrontations with the police. Most people are aware that many neighbors own guns, and even that many people are licensed to carry concealed guns and many others carry them illegally, but this abstract knowledge doesn’t cause much worry. But when a gun is visible, it occupies people’s attention in a way that statistical realities do not. This is likely to deter many people from carrying a gun. (One piece of evidence for this is that, in states that allow concealed carry, 1% to 4% of the adult population gets a license. But in states that allow only open carry, including my own California, open carry is almost never seen.) As in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) -- where the Court found a First Amendment problem with the government’s forcing the NAACP to list its members -- “it is not sufficient to answer ... that whatever repressive effect compulsory [self-identification of gun carriers] follows not from state action but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the [open-carry requirement] that private action takes hold.”
There is indeed an “open carry movement” of people who deliberately wear guns openly, as a means of normalizing such behavior and of making a statement in favor of gun possession. But this is like people who wear T-shirts that say “I had an abortion.” A few people choose to disclose such facts to make a political point. Yet most people are reluctant to make such disclosures, and would be reluctant to engage in the underlying behavior if they had to publicly disclose it.
And the Court has recognized that government disclosure mandates may substantially burden constitutional rights when they trigger social pressure that deters constitutionally protected behavior. For instance, the right to anonymous speech and anonymous group membership stems largely from concerns that mandated identification of speakers will lead to a risk of ostracism and police harassment, and will thus deter speech. Likewise, banning concealed carry in public places will likely deter many people from carrying guns in public places altogether -- and will thus substantially burden their ability to defend themselves.
What’s more, the historical hostility to concealed carry strikes me as inapt today. The classic argument was captured well by the Richmond, Virginia Grand Jury in 1820:
On Wearing Concealed Arms
We, the Grand Jury for the city of Richmond, at August Court, 1820, do not believe it to be inconsistent with our duty to animadvert upon any practice which, in our opinion, may be attended with consequences dangerous to the peace and good order of society. We have observed, with regret, the very numerous instances of stabbing, which have of late years occurred, and which have been owing in most cases to the practice which has so frequently prevailed, of wearing dirks: Armed in secret, and emboldened by the possession of these deadly weapons, how frequently have disputes been carried to fatal extremities, which might otherwise have been either amicably adjusted, or attended with no serious consequences to the parties engaged.
The Grand Jury would not recommend any legislative interference with what they conceive to be one of the most essential privileges of freemen, the right of carrying arms: But we feel it our duty publicly to express our abhorrence of a practice which it becomes all good citizens to frown upon with contempt, and to endeavor to suppress. We consider the practice of carrying arms secreted, in cases where no personal attack can reasonably be apprehended, to be infinitely more reprehensible than even the act of stabbing, if committed during a sudden affray, in the heat of passion, where the party was not previously armed for the purpose.
We conceive that it manifests a hostile, and, if the expression may be allowed, a piratical disposition against the human race -- that it is derogatory from that open, manly, and chivalrous character, which it should be the pride of our countrymen to maintain unimpaired -- and that its fatal effects have been too frequently felt and deplored, not to require the serious animadversions of the community. Unanimously adopted.
JAMES BROWN, Foreman.
Carrying arms, the theory went, was “one of the most essential privileges of freemen,” but “open, manly, and chivalrous” people wore their guns openly. Carrying a gun secretly was the mark of “evil-disposed men who seek an advantage over their antagonists,” State v. Smith, 11 La. Ann. 633 (1856). And requiring that people carry openly imposed no burden on self-defense, precisely because open carry was so common that it wasn’t stigmatized.
Today, open carrying is uncommon, and many law-abiding people naturally prefer to carry concealed (in the many states where it is legal). Concealed carrying is no longer probative of criminal intent. If anything, concealed carrying is probably more respectful to one’s neighbors, many of whom are (sensibly or not) made uncomfortable by the visible presence of a deadly weapon. Nor is there any particular reason to think that concealed carrying increases lethal quarrels by suckering people into thinking that they can safely argue with a person who they think is unarmed. We’re all aware now that any stranger might well be armed, whether lawfully or not. And the very people who are most likely to turn an argument into a gunfight -- gang members and other criminals -- are probably the ones who are unlikely to comply with an open-carry-or-no-carry mandate.
So it seems unlikely that there’s a credible reducing danger case to be made for mandating that carrying be done openly rather than concealed -- except insofar as one argues that all carrying is dangerous, and that mandating open carry is good precisely because it will deter carrying even by the law-abiding. Yet that is an argument that the right to bear arms in self-defense should foreclose. If my analysis in the previous section is correct, and a right to bear arms generally includes the right to carry, then it ought to include the right to carry concealed.
I must acknowledge, though, that longstanding American tradition is contrary to this functional view that I outline. For at least about 150 years, the right to bear arms has generally been seen as limited in its scope to exclude concealed carry. Constitutional provisions enacted after this consensus emerged were likely enacted in reliance on that understanding. If Heller is correct to read the Second Amendment in light of post-enactment tradition and not just enactment-era original meaning, this exclusion of concealed carry would be part of the Second Amendment’s scope as well. And if the Second Amendment is incorporated via the Fourteenth Amendment, its scope as against the states might well be properly defined with an eye towards how the right to bear arms was understood in 1868, when the concealed-carry exception was apparently firmly established.
There is a response to be made against this scope argument: The historical exclusion, the response would go, was contingent on the social conventions of the time -- the social legitimacy of open carry, and the sense that concealed carry was the behavior of criminals -- and this exclusion is no longer sustainable now that the conventions are different. If this response is persuasive, then for the reasons I argue above a ban on concealed carry should indeed be seen as a presumptively unconstitutional substantial burden on self-defense. But overcoming the scope objection would be an uphill battle, as Heller itself suggests.
Related Posts (on one page):
- The Right To Keep and Bear Arms in Self-Defense and Government Tracking Regulations:
- The Right To Keep and Bear Arms in Self-Defense, and Taxes, Fees, or Regulations That Indirectly Raise Gun or Ammunition Prices:
- The Right To Keep and Bear Arms in Self-Defense and Waiting Periods:
- The Right To Keep and Bear Arms in Self-Defense and Bans on Carrying Guns Outside the Home:
- The Right To Bear Arms, Minors, and 18-to-20-Year-Olds (and Maybe Even Older):
- Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda: