Who are “the people” who are entitled to “keep and bear arms”? Does the right to “bear” arms entail the right to carry firearms outside the home?
This fall, the Supreme Court will decide whether the Second Amendment secures the individual right to bear arms for self-defense outside the home. The case, New York State Rifle & Pistol Assn. v. Corlett (No. 20-843), involves New York’s concealed carry permit law, which requires a showing of “proper cause” to obtain a concealed carry license.
The law makes it virtually impossible for an ordinary law-abiding citizen to obtain a license to carry a handgun for self-defense outside the home. An applicant must demonstrate “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” A general desire to protect one’s person or property or a generalized fear is not sufficient — nor is a simple desire to carry a weapon, nor is living or being employed in a high-crime area.
The Right to Keep and Bear Arms
The Second Amendment protects two separate rights: the right to “keep” arms and the right to “bear” arms. According to the landmark case District of Columbia v. Heller, which affirmed the individual right to keep and bear arms, to “keep arms” means to have or possess weapons, and to “bear arms” means to “wear, bear or carry” firearms “upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.” Every clause in the Constitution is intended to have meaning. Clearly, to bear arms is something more than merely keeping arms at one’s home.
The need for self-defense inevitably arises outside the home. As stated in Moore v. Madigan, a 7th Circuit case that overturned Illinois’ ban on carrying outside the home, “A Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.” The court added, “Knowing that many law-abiding citizens are walking the streets armed may make criminals timid.”
The Supreme Court’s Decision
The Supreme Court, with a six-justice “conservative majority,” is likely to declare the New York law unconstitutional. Justices Clarence Thomas, Samuel Alito, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett have all expressed support for protecting the Second Amendment from government encroachment. When Justice Barrett was sitting on the 7th Circuit, she wrote a dissent in Kanter v. Barr, arguing that the felon dispossession statute, 18 U.S.C. § 922(g)(1), requiring the dispossession of all felons — both violent and nonviolent — is unconstitutional. She said there is no evidence showing that “disarming all nonviolent felons substantially advances [the government’s] interest in keeping the public safe” and that “Founding-era legislatures did not strip felons of individual rights like the right to possess a gun.”
The Supreme Court, with a six-justice “conservative majority,” is likely to declare the New York law unconstitutional.
A decision in the coming Supreme Court case will impact other states with restrictive licensing schemes: California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island. These states require a showing of “justifiable need,” “good reason to fear injury” or “good and substantial reason.”
Some of these jurisdictions impose draconian requirements. California, for example, requires an applicant to be “tested” by a licensed psychologist selected by the licensing authority. In Delaware, an applicant must submit attestations from “five respectable citizens” that the applicant is a person of “sobriety and good moral character, that the applicant bears a good reputation for peace and good order … and that the carrying of a concealed deadly weapon by the applicant is necessary for the protection of the applicant or the applicant’s property or both.” There are extensive training requirements, and an applicant must publish his or her application in a local newspaper. Permits are granted or denied at the sole discretion of a Superior Court judge, and the law provides no criteria for the exercise of the judge’s discretion. An application will be denied if there is “insufficient need,” and appeals are not allowed.
Law in Practice
In the early days of the republic, it was common for men to go outdoors armed. As federal judge St. George Tucker wrote in 1803 about American ways, “In many parts of the United States, a man no more thinks of going out of his house on any occasion, without his rifle or musket in his hand, than a European fine gentleman without his sword by his side.” George Washington, Thomas Jefferson and John Adams carried firearms in public and spoke in favor of the right to do so — a clear indication that the right to bear arms was not limited to the home. Militia service entailed bearing arms outside the home. Militia members were not expected to arrive at proving grounds unarmed.
Some courts treat the Second Amendment as a second-tier constitutional right, singled out for unfavorable treatment because of supposed public-safety concerns. Gun-control lobbyists argue, without evidence, that carrying concealed guns in public can “quickly escalate everyday conflicts” and hurt “innocent” lives, cause a spike in violent crimes, or create confusion for law enforcement responding to shootings.
The truth is that concealed carry tends to increase the percentage of the population that is armed and discourage criminals from pursuing violent crimes. This is especially important if police forces are “canceled” or police decline to intervene in altercations. As mentioned in the Madigan case noted above: “Based on available empirical data, we expect relatively little public safety impact if courts invalidate laws that prohibit gun carrying outside the home.”
State Gun Stats
Arizona, a “constitutional carry” state (meaning that no permit is required to carry openly or concealed), ranks almost exactly the same as California and Maryland — with their drastic gun-control laws — in terms of violent crime statistics. (The crime rate per 100,000 population: Arizona, 455.3; California, 441.2; Maryland, 454.1.).
And a Rand Corporation report concludes that concealed carry “could lead to reductions in the prevalence or severity of violent crime and mass shootings either because the prospect of encountering an armed victim serves as a deterrent or because victims will more frequently be able to use a gun to defend themselves” (see “The Effects of Concealed Carry Laws,” updated April 22, 2020).
Courts must not rely on pseudo-science sideshows funded by anti-gun academics who support “synthetic control algorithms and programming” or “new statistical techniques” to conclude that permissive concealed carry laws are dangerous. Constitutional rights are fixed and inflexible and cannot change at the whim of well-meaning judges or legislatures. Social science cannot weigh in for or against liberties protected in the Bill of Rights.
Concealed Carry Permits
Several states have “shall-issue” permit laws so that licensing authorities have little or no discretion to issue a concealed carry permit to anyone who applies and meets requirements of weapons training and a criminal background check. The “no-discretion” shall-issue states are: Arkansas, Florida, Louisiana, Michigan, Nebraska, Nevada, New Mexico, North Carolina, Ohio, South Carolina, Tennessee, Texas, Virginia, Washington, Wisconsin and Wyoming. In addition, Connecticut courts have ordered that concealed carry permits should be issued without requiring applicants to show cause.
And a number of states are “constitutional carry,” allowing concealed or open carry with no permit needed: Alaska, Arizona, Arkansas, Idaho, Iowa (as of July 1, 2021), Kansas, Kentucky, Maine, Mississippi, Missouri, Montana (as of Feb. 18, 2021), New Hampshire, North Dakota, Oklahoma, South Dakota, Tennessee (as of July 1, 2021), Utah (as of Feb. 12, 2021), Vermont, West Virginia and Wyoming. These states have reciprocity among themselves. Texas and Louisiana state legislatures recently passed constitutional carry bills. Both governors are expected to sign them into law.
Several states have “shall-issue” permit laws so that licensing authorities have little or no discretion to issue a concealed carry permit to anyone who applies and meets requirements of weapons training and a criminal background check.
Some states are hybrid, meaning no permit is needed for open carry, but a permit is needed for concealed carry: Delaware, Louisiana, New Mexico, North Carolina, Ohio, Oregon, Virginia and Wisconsin.
Why would a state allow open carry without a permit but require a permit for concealed carry? These legislatures believe that criminals usually conceal their weapons, whereas law-abiding citizens have no compunction about displaying theirs. To carry in full open view is a more transparent way of placing individuals upon equal footing. It clearly identifies the bearer’s readiness for self-defense, while a concealed weapon may be part of a criminal ruse (at least in some lawmakers’ minds, misguided as these attitudes may seem).
Speaking of lawmakers, a future Supreme Court case will likely decide the constitutionality of laws in a handful of states that have an outright ban on open carry: California, Florida, Illinois and the District of Columbia.
The People’s Right
Text, history and tradition readily confirm that the Second Amendment protects an individual’s right to carry firearms outside the home for self-defense. It is a right that belongs to all “the people,” not just to some subset of “the people” who somehow distinguish themselves from their fellow Americans. The Second Amendment is not a second-class right.