Carry, Carry: Not Contrary

By Charles C. W. Cooke

Thursday, February 16, 2023

 

There is a great deal of truth beneath John Adams’s famous claim that “Liberty once lost is lost forever.” And yet, if it were accurate in all circumstances, our country would look much different from its current state. If, indeed, forfeited liberties could never be restored, then the First Amendment, which took a beating in the early part of the 20th century, would not be thriving in the courts; the Sixth Amendment, whose confrontation clause was once a dead letter, would not have been renewed; black voters, who cast ballots in large numbers in the postbellum period but whose rights were curtailed after the failure of Reconstruction, would still be barred from the ballot box; the top federal income-tax rate, which hit 90 percent in the 1950s, would not have come down to its current perch in the high 30s; and the Second Amendment, which in the space of just 50 years has been taken from a state of near-moribundity and revivified to an extent that almost nobody had considered possible, would have disappeared off the face of the earth.

 

Sometimes, “forever” doesn’t come.

 

Nowhere is this truer than with the right to keep and bear arms. In 1975, the American Bar Association felt so confident that the ongoing attempt to read the Second Amendment out of the Constitution would succeed that it saw fit to declare with a straight face that “it is doubtful that the Founding Fathers had any intent in mind with regard to the meaning of this Amendment.” Today, after half a century of hard work, this idea has been blown unceremoniously out of the water, the protections of the Second Amendment are stronger than they have been in 100 years, and, thanks to pressure from the voting public, many of the draconian regulations that were imposed over the course of the 20th century have been dismantled piece by piece.

 

Consider, by way of example, the extraordinary explosion of “constitutional carry” states that the last two decades have yielded. Between the end of the 19th century and the summer of 2003, only one American state consistently allowed its citizens to bear arms without a license. That state was Vermont, and its latitudinarian system did not derive from a conscious choice made by the legislature but from a watertight 1903 case in which the state supreme court held that Vermont’s 1793 constitution prohibited the government from requiring law-abiding adults to obtain a permit before carrying a weapon. Since 2003, 24 states have joined Vermont, bringing the total number of states in which law-abiding citizens may carry concealed firearms without first having to apply for a permit to 25 — or exactly half of the 50 that have been admitted to the Union thus far. Next month, absent a dramatic shift in political sentiments, Florida will become No. 26. Similar bills are in motion in South Carolina, Louisiana, Nebraska, and elsewhere. In 2002, Americans could carry firearms without a permit in just one state. By the end of next month, concealed-carrying Floridians will be able to drive from Key West to Coeur d’Alene, Idaho, without needing a permit at any point along the way.

 

To grasp the scale of this shift, some numbers are in order. In 2002, 0.21 percent of the U.S. population lived in a constitutional-carry state. By the end of next month, that number will be 44 percent. In 2002, 0.002 percent of the land of the United States was under constitutional-carry rules. By the end of next month, that number will be 64 percent. 

 

Naturally, the news that, for the first time since the 19th century, a majority of American states will decline to impose a permitting system on the “bear” portion of “keep and bear arms” in the Second Amendment has occasioned a great deal of anxiety within the American gun-control movement — which, in many quarters, has still not figured out that it is losing the argument. In a press release this month, the Giffords nonprofit organization called Florida’s plan to become America’s 26th constitutional-carry state “reckless.” In the Tallahassee Democrat, Prevent Gun Violence Florida called the move “outlandish.” On MSNBC, meanwhile, Joy Reid went so far as to describe the change as “fascism.”

 

But this is all rather silly. Certainly, constitutional-carry legislation alters the rules that govern the legal carrying of firearms; if it didn’t, it would be pointless. But, contra the Giffords nonprofit, Prevent Gun Violence Florida, Joy Reid, and others, the practical effects of those changes are limited.

 

Constitutional carry does not change the eligibility rules for owning or carrying a gun: If a person was legally excluded from either keeping or bearing firearms under the previous permitting system, he remains legally excluded after that permitting system has been abolished.

 

Constitutional carry does not change where eligible carriers may take their weapons: The federal, state, and local limitations that obtained before remain untouched.

 

Constitutional carry has no effect on the preexisting background-check rules: The federal system exists independently of state law, and states that abolish their carry permits are not obliged to alter their background-check rules in concert.

 

Constitutional carry does not change which firearms or magazines or accessories are legal: Those determinations are made by a variety of state and local laws and the federal 1934 National Firearms Act.

 

Constitutional carry does not, by itself, allow the open carrying of arms: Florida’s proposed law, for example, keeps open carry illegal in the state.

 

Constitutional carry has — and can have — no connection to mass shootings, because, by definition, mass shooters do not rely on the acquiescence of the government when committing their crimes.

 

What constitutional carry does do — all constitutional carry does, in fact — is prevent adults who would have been eligible to acquire a carry permit under the previous system from having to fill in the paperwork, complete any associated training requirements, pay a fee, and wait. Primarily, it’s a bureaucratic change.

 

Does that change affect crime? Apparently, not much, no. Personally, I do not favor the argument that, because criminals and the irresponsible abuse key constitutional rights, we should restrict those rights. But if I did, I would not be impressed by the case against constitutional carry. As data from Florida and Texas have shown, legal concealed-carriers are not only a nonfactor in crime; they are, in fact, up to seven times more law-abiding than the police. And when those people are able to carry without a license? Well, nothing seems to happen. Per a meta-study conducted by the RAND Corporation: “Permitless-carry laws have uncertain effects on total homicides. Evidence for this relationship is inconclusive.”

 

So why have the permitting system at all?

 

Some advocates of constitutional carry insist that the “right to keep and bear arms” language in the federal constitution renders all concealed-carry permitting systems illegal per se. I am not convinced by this. It is certainly true that, for most of American history, most jurisdictions did not require carry permits. But it does not follow automatically from this that the Second Amendment mandates that all jurisdictions allow citizens to carry firearms without a permit.

 

What is true, however, is that the limits that the Constitution imposes on permitting systems tend to render those permitting systems superfluous. As the Supreme Court confirmed last year in New York State Rifle & Pistol Association, Inc. v. Bruen, states may, indeed, choose to institute permitting processes, but, if they do, they may not use those processes to discriminate against certain applicants by using subjective or capricious criteria. Since the concealed-carry revolution began in earnest in the mid 1980s, observers have distinguished between states with “may issue” permitting regimes (i.e., states in which applicants who meet the basic age, criminal-record, and training requirements are not guaranteed to be issued a permit) and states with “shall issue” permitting regimes (i.e, states in which those who meet the criteria are legally guaranteed to be accepted). In Bruen, the Supreme Court effectively outlawed the few “may issue” permitting systems that were left standing, in eight states, on the grounds that they allowed government officials to arbitrarily deny access to a core constitutional right.

 

That being so, the argument for taking the step from “shall issue” to constitutional carry is obvious: (1) Concealed-carry permits provide an opportunity for bureaucratic caprice; (2) in the realm of constitutional rights, bureaucratic caprice is illegal or undesirable; (3) as a result of this, the Supreme Court has ruled that states are obliged to hand permits out on a categorical basis rather than an individual basis; (4) there is no evidence that doing this has any effect on crime; (5) so why bother?

 

In evaluating this argument, critics of constitutional carry like to focus on the role that the Supreme Court has played in the process. And, indeed, in states such as New York and California, Bruen is likely to hasten the end of “may issue” as a viable option. But one can badly overstate that case. Had the Court ruled as it did in Bruen in, say, 1986 — when 16 states did not permit concealed carry at all (“no issue”), 25 states had “may issue” systems, and there were only eight “shall issue” states in total — the effect of its decision would have been monumental. Likewise if the case had come down in 1996, by which point 30 states had adopted “shall issue” but there were still twelve “may issue” states and seven “no issue” states in existence. But in 2022? The truth of the matter is that, by the time SCOTUS issued the Bruen decision, nearly every state in America had already adopted “shall issue” or constitutional carry of its own volition — either because, having noticed that nothing bad happened when the rules were liberalized, public pressure had demanded the change or because legislators had recognized that the permitting systems that they had spent years running were inconsequential.

 

Which is to say that, while the holdings in the major gun-related Supreme Court cases of the 21st century are legally sound, the rise in cases being brought was the product of a profound shift in democratic attitudes that began in the culture at large. That shift made its way into state legislatures and eventually prompted litigation against the holdouts. From time to time, advocates of stricter gun control will wonder aloud how we got from the indifference of the 1970s to a situation in which a majority of states are busy abolishing regulations that, just 30 years ago, would have been considered imperative. The simple answer to their question is that, faced with the prospect that a Liberty might be lost forever, Americans thought about it, and then decided to push back — hard.