Concealed and Open Carry under the Second Amendment

The Supreme Court and the Second Amendment

Washington DC had a set of gun laws that made owning a handgun illegal without a special one-year permit. An additional lock-and-trigger requirement prohibited keeping loaded "fire-ready" guns in DC homes. A policeman, Dick Heller, applied for a permit to possess a handgun in his Washington home. After being denied a permit, Heller sued the city using an argument under the Second Amendment that DC's laws deprived him of the right to a handgun for self-defense and the lock-and-trigger requirement effectively banned useful firearms from the home. In 2008 Heller's argument prevailed at the Supreme Court with a 5-4 vote. In District of Columbia v. Heller, the Supreme Court rejected the view that the Second Amendment only applied to militias. For the first time, the Court held that the Second Amendment conveyed an individual right to gun ownership and that to protected possession of guns in the home. Prior to Heller, the court in US v. Miller limited Second Amendment protection to weapons useful to militias and did not extend the right to individuals. The court conducted a more thorough review in Heller and found handguns to be protected by the historical extent of the Second Amendment's purpose, and struck down the DC's ban. It also struck down the city's trigger-lock mandate because it rendered guns in the home useless for the self-defense purpose protected by the individual right. Justice Scalia, writing for the majority, reasoned that the effect of the requirement amounted to a ban on guns in the home.

Because DC is a federal enclave, however, the Heller decision established a narrow precedent. In 2010 the Supreme Court decided its next major Second Amendment case, McDonald v. Chicago. That case was brought by Otis McDonald, who sought to apply the Second Amendment Heller right to local and state governments by suing the City of Chicago over laws similar to those at issue in Heller. Justice Alito, who authored the Court's opinion, found that the individual right was one historically regarded as a "substantive guarantee," and one that the majority of the states recognized in some manner. In a 5-4 opinion a majority of the Court found that the individual right pronounced by Heller was incorporated by the Fourteenth Amendment and fully applied to the states. The plurality of the Court reasoned the Second Amendment right from Heller applied to the states through the Fourteenth Amendment's Due Process Clause. Justice Thomas, who concurred in part and concurred in judgment, reasoned that Fourteenth Amendment's Privileges and Immunities Clause applied Heller's to the states.

Survey of State Open and Concealed Carry Laws

Open carry laws restrict a person's ability to visibly wear or carry a gun in public. Both open and concealed carry laws vary considerably from state to state. Some state open carry laws differentiate between handguns and long guns, such as rifles and shotguns. Seven states, including California and New York, forbid the open carry of handguns. Thirteen states, including Connecticut and Utah, require either a state-issued permit or license to openly carry a handgun. Nine states, including Michigan and Pennsylvania, regulate a person's ability to openly carry a handgun, but do not go so far as to require a license or permit. The remaining 22 states do not restrict a person's right to openly carry a handgun.

Six states including California and Florida prohibit openly carrying a long gun. Iowa, Michigan, Pennsylvania, Tennessee, Utah and Virginia restrict openly carrying a long gun, but do not completely prohibit such actions. For example, while open carry of a long gun is permitted in Pennsylvania, it is prohibited [PDF] within Philadelphia city limits. The remaining states do not restrict the open carry of long guns, however, Iowa, Tennessee and Utah require the firearm to be unloaded when carried in public.

State laws for issuing concealed carry permits or licenses are separated into three broad categories: shall-issue, may-issue and unrestricted states. Within those categories, individual state laws exist on a spectrum from more to less restrictive. Some states require a showing of good cause for an applicant to be approved for a concealed carry permit or license. For example, New York defines good cause as "a special need for self-protection." Other states require an applicant to be of good character to be approved for a concealed carry permit. Good character, in Nevada, is defined [PDF] as someone who has not been dishonorably discharged from the armed forces, has not renounced US citizenship, and is not subject to a restraining order. Some states allow the licensing authority to deny a concealed carry permit if the applicant is deemed dangerous. For example, in Alabama, authorities may deny a permit if there is a documented reason to believe that the person is dangerous.

Shall-issue states require a person to obtain a permit or license to carry a concealed firearm; should the applicant meet all the parameters of licensure, the state is required to issue the applicant a concealed carry license or permit. Thirty-seven states use "shall-issue" concealed carry laws.

May-issue states require a person to obtain a permit or license to carry a concealed firearm. The licensing authority, however, has the discretion to deny a license or permit even if the applicant meets all of the parameters for licensure. Nine states are considered may-issue states, including California and Connecticut.

Unrestricted states do not require a person to obtain any permit or license in order to carry a concealed weapon. Alaska, Arizona, Vermont and Wyoming are all unrestricted concealed carry states.

Many states offer concealed carry permit reciprocity. Such reciprocity is authorized under the Full Faith and Credit Clause of the US Constitution. State reciprocity varies in permissibility. For example, Massachusetts (a may-issue state) does not honor any other states' concealed carry permit. Pennsylvania honors state concealed carry permits from 14 other states. On the other end of the spectrum, Arizona honors the concealed carry permit of every other state.

In addition to state laws that govern concealed carry permit applicants, some states restrict the locations where persons with concealed carry permits are allowed to take their weapons. Many states prohibit concealed weapons on government property, such as schools, prisons or courthouses. Thirteen states prohibit gun owners from carrying concealed weapons into places of worship. Sixteen states prohibit concealed weapons from any establishment which serves alcohol. Ten states prohibit concealed weapons from polling places. Six states prohibit concealed weapons from public sporting events, five states from hospitals, six states from facilities where gambling is permitted and four states from mental health facilities.

Most states that permit the concealed carry of firearms have "opt-out" statutes. These statutes allow a business owner to enforce his own policy regarding guns on premises. Business owners can post signs, issue oral warnings to persons carrying a concealed firearm or even eject them from the premises. Such opt-out laws allow a business owner to create a gun-free zone.

In the past few years, several states have suggested or enacted new concealed carry laws. In March 2013 Utah Governor Gary Herbert vetoed a law which would have allowed persons to carry an unloaded concealed firearm without a permit. In September 2013 the Mississippi Supreme Court unanimously affirmed a state law which allows gun owners to carry a holstered weapon without a permit, so long as the weapon is partially visible. Indiana passed a law in March 2014 permitting adults to carry concealed weapons onto school property, so long as the weapon remained locked in a vehicle. Most recently, Georgia Governor Nathan Deal signed the "Safe Carry Protection Act," which permits licensed gun owners to carry weapons into formerly-forbidden public places, such as schools and bars.

Circuit Split on Concealed Carry Permit Requirements

District of Columbia v. Heller and McDonald v. Chicago made clear that the Second Amendment protects the right to keep and bear firearms in the home for self-defense, but left unanswered whether it protects other conduct. Writing for the majority in Heller, Scalia emphasized that Heller marked the Supreme Court's first substantive exploration of the Second Amendment, and that determining the scope of conduct protected by the Amendment presented a challenge for future courts. McDonald added little more to the discussion. Presently, federal circuit courts are grappling with the reach of Second Amendment protections outside the home in the context of concealed-carry permits.

Generally, the divisive question is whether state laws or local ordinances requiring applicants for a concealed carry permit to provide evidence of specific threats against their person, rather than a general concern for self-defense, infringe on protected Second Amendment conduct. Several federal circuit courts found that laws requiring evidence of specific threats are constitutional under the Second Amendment. The US Court of Appeals for the Second Circuit in Kachalsky v. County of Westchester reviewed a challenge to the constitutionality of New York concealed carry permit law, which required that applicants demonstrate specific evidence of a need for self-protection. While the Second Circuit stated that the right to self-defense articulated in Heller had some application outside the home, New York's law was a presumptively constitutional longstanding restriction and the permit requirement was not a complete ban on public carrying. Using a similar analysis, the US Court of Appeals for the Fourth Circuit upheld Maryland's permit requirement in Maryland in Woollard v. Gallagher. The US Court of Appeals for the Third Circuit in Drake v. Filko found New Jersey's permit requirement constitutional as a longstanding presumptively lawful measure, it offered a different analysis than the Second Circuit. For the Third Circuit, the proper question was not whether the Heller right existed outside the home, but whether a similar right could be said to exist in public. The Supreme Court denied certiorari for Drake in May 2014.

By contrast, some circuit courts found state or local permit laws requiring more evidence than a general concern for self-defense to be unconstitutional. Writing for the US Court of Appeals for the Seventh Circuit in Moore v. Madigan, Judge Posner found Illinois' specific evidence of a threat requirement to be an unconstitutional burden on the Second Amendment. For Judge Posner, American history prior to ratification of the Second Amendment supported finding that the right to self-defense exists outside the home. The opinion critiqued opinions upholding such requirements as mistakenly interpreting the right to self-defense as a right tied to property instead of the person: "[i]t is not a property right - a right to kill a houseguest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell's painting Santa with Elves." The US Court of Appeals for the Ninth Circuit in Peruta v. County of San Diego held unconstitutional a San Diego county requirement for specific evidence after analyzing the history of the Second Amendment and the precedent established by Heller and McDonald.


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Timeline

06/26/2014: Federal judge upheld Colorado gun control laws

04/23/2014: Georgia governor signed bill expanding gun carry rights

03/31/2014: Federal judge ruled immigrants have same gun carrying rights as citizens

03/25/2014: Ninth Circuit upheld San Francisco gun control laws

02/13/2014: Ninth Circuit overturned California concealed weapons ban

05/31/2013: Illinois Senate approved concealed weapons bill

03/21/2013: Fourth Circuit upheld Maryland concealed carry permit restrictions

12/11/2012: Seventh Circuit struck down Illinois ban on concealed carry

06/28/2010: US Supreme Court found that Second Amendment applied to the states in McDonald v. Chicago

06/26/2008: US Supreme Court held DC handgun ban unconstitutional in District of Columbia v. Heller

 ...[more]

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