February 07, 2023

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

History of Conceal and Carry in the U.S.

(Pt. 1)

The Second Amendment to the United States Constitution states "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Although the Supreme Court first held the Second Amendment protects an individual right to keep and bear arms in Dredd Scott v. Sandford, 60 U.S. 393, 417 (1857), it struck down a gun control law on Second Amendment grounds for the first time in District of Columbia v. Heller (2008), ruling that the Second Amendment protects a responsible, law-abiding individual's right to keep handguns in the home for self-defense. On June 23, 2022, in New York State Pistol & Rifle Assoc. v. Bruen, the Court confirmed the Second Amendment protects the right to carry firearms in public for self-defense. The Court struck down a requirement in New York's public carry law that required an applicant to have "proper cause" to carry outside the home, separate from a general desire for self-defense. The Court did not invalidate any of the other provisions of New York's law requiring people who carry guns in public to obtain a permit. In fact, Justice Kavanaugh stated in his concurrence that, "[g]oing forward, therefore, the 43 States that employ objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do so. Likewise, the 6 States including New York potentially affected by today's decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shall-issue States." In Bruen, the Court referred to the 25 states that have repealed their laws requiring permits to carry in public as "permitless carry" states.

Research into the effects of shall-issue concealed carry laws has rendered mixed results. A meta-analysis conducted by the RAND Corporation of over 30 studies up to 2019 concluded, "the best available studies provide inconclusive evidence for the effect of shall-issue laws" on total homicides, firearm homicides, robberies, assaults, and rapes, and that "there is limited evidence that shall-issue laws may increase violent crime".

A study of states that adopted permitless concealed carry laws found that such states experienced a 13% increase in fatal and nonfatal police shootings of civilians compared to what would have been expected had stronger carrying standards remained in place. People who carried firearms at least once in the past month were three times more likely to have had a firearm stolen than other gun owners.

Whether the intent of the Second Amendment was to recognize an individual right to own and carry arms, or to guarantee the right of each of the several States to have a militia composed of citizens (i.e. the organized, and unorganized militia, as defined by the Efficiency In Militia Act of 1903) remains an issue of public debate. However, the constitutions of 32 states expressly protect an individual right to keep and bear arms (Alabama, Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Illinois, Indiana, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming). Case law in 9 other states (Arkansas, Georgia, Idaho, North Carolina, Ohio, Rhode Island, South Carolina, Tennessee, and Wisconsin) protects the individual right, making a total of 40 states that expressly protect an individual right to keep and bear arms.

Early bans
The constitutions of Kentucky (1850), Louisiana (1879), Mississippi (1890) and Idaho (1978) permitted their respective Legislatures to regulate or prohibit concealed carry while respecting the right to open carry without a permit. This is because concealing weapons used to be thought of as a practice done exclusively by criminals.

Vermont
The state of Vermont is a notable exception to the trend in concealed carry laws. According to its Constitution, it is forbidden from regulating the carrying of firearms, either open or concealed. For this reason, Vermont became the first state to have Constitutional carry, also known as "permitless carry" or "Vermont carry". However, Vermont's utter refusal to touch the subject of concealed carry regulation leaves its citizens without the ability to acquire a concealed carry permit in their home state. This causes problems for Vermonters traveling to states that recognize only resident carry permits, and for Vermonters who would apply for nonresident permits in states that require proof of a resident concealed carry permit before they will consider issuing a nonresident permit. This could theoretically also cause problems under the Gun-Free School Zones Act of 1990, which through its 1000-foot radius provision, makes unlicensed carrying of firearms illegal under Federal law in nearly every part of any city or town, although in practice this Act is rarely (if ever) enforced against persons who are not either on school property or committing some other crime. For these reasons, every other state to adopt constitutional carry has kept its permitting process in place.

Reconstruction and discrimination
During Reconstruction, several states, especially Southern states, passed laws banning concealed carry. These laws were often aimed at disarming African-Americans, and though they did not explicitly say so because of the 14th Amendment, were not to be enforced against whites.

Rivers H. Buford, associate justice of the Florida Supreme Court, said that the Florida law banning concealed carry, "[t]he original Act of 1893 ... was passed for the purpose of disarming the negro laborers ... and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied. ... [I]t is a safe guess to assume that more than 80% of the white men living in the rural sections of Florida have violated this statute. It is also a safe guess to say that not more than 5% of the men in Florida who own pistols and repeating rifles have ever applied to the Board of County Commissioners for a permit to have the same in their possession and there has never been, within my knowledge, any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention to the Constitution and non-enforceable if contested."

In fact, Florida was not the only such state to ban the carriage of arms by blacks, nor was it the most explicit. The 1834 Tennessee Constitution, 1836 Arkansas Constitution, as well as the 1838 Florida constitution, stated "That the free white men of this State shall have a right to keep and to bear arms for their common defence."

(Part 2 will be next week...stayed tuned)


Thanks for reading,

The Editor

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