search
top

Clarification on Concealed Carry

I support Vermont style carry, as ideal.  I agree with folks who argue that criminals will carry guns no matter what the law says.  But the point of my previous post is finding a framework that works within the confines of Heller, such as this:

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

Now, this is dicta, which means it’s not legally binding precedent, but it’s quite likely to be latched on to by lower courts.  We also have plenty of state cases that have long interpreted carrying a concealed firearm as outside of the right to bear arms.  But The Court also says this:

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment.

My argument is essentially that open carry is actually a severe burden on the right to carry a firearm in case of confrontation, and probably was also a burden even when the practice started becoming accepted as social custom in the 19th century.  The reason it became social custom is because it likely served as a signal, e.g. a quick way to discern someone with criminal intent from someone without criminal intent.

The various licensing scheme actually serve the same purpose, in that when law enforcement encounters someone who is armed, they have a quick way to sort friend from foe.  It’s still just a signal.  I think this can have implications for constitutional construction around Heller, in that perhaps the governments only interest is this kind of sorting function.  If that’s the case, it doesn’t necessarily have to lead to licensing, thought hat’s one way to satisfy the interest.

But given the choice between constitutionally protected open carry with concealed carry being a privilege that can be subject to outright prohibition, or allowing the regulation of concealed carry, but not its prohibition, I think the latter is actually less destructive of the right.

I agree that’s not an ideal choice, but that could be what the courts force on us.  Heller isn’t really to blame so much for this, as longstanding constitutional traditions that seem to allow government some measure of regulating arms carried in public.  I think it behooves us to think about how to create a legal framework the courts will accept, but that protects the most amount of freedom.

12 Responses to “Clarification on Concealed Carry”

  1. Jdude says:

    A manner restriction would be appropriate. The respective State should chose which manner (open or concealed) they wish to be unlicensed and protected, and ban or license the other as they wish.

    I lack the legalese, but I think this is the ideal and most workable situation.

  2. Stephen says:

    It’s also worth pointing out to those who talk about compromise that concealed carry is the compromise. Open carry is simpler but socially provocative currently. Concealed carry permits the carrier to exercise his rights and desires while allowing others to ignore the issue. Too many people want to ban or seriously restrict concealed carry, but then say open carry is offensive. While nrestricted carry is the ideal, we have to work from where we are today in terms of both the case law and social custom.

  3. Laughingdog says:

    I actually prefer the laws in Alaska to those in Vermont, since Alaska has a permit system in place, for reciprocity reasons, but you don’t need one if you’re only going to carry in Alaska.

    As it is, I’m at least content with how the law works with carry here in Virginia: open carry requires no permit but concealed does. I’d be equally content with a reversal of those. I don’t get frustrated until the law makes it impossible for me to carry a firearm without a permit.

  4. Bob S. says:

    Sorry but I’m frustrated with the burden of proof.

    Here in Texas, as many other places, there is a scuffle going on about having to present a photo ID to vote. Some people are saying that having to present an easily obtained, low cost (approx. $10) photo identification card is a violation of their rights.

    In the mean time, in order to carry concealed; not only do I have to present a photo ID I have to present 2 additional photographs ($8), two sets of fingerprint cards ($10), submit to a background check (30-60 days), attend a class ($50-$200 depending), pay a fee ($140 standard – $70 for vets, discounted for “poor” also).

    All to prove that I am eligible to exercise my rights,

    If you want a signal, how about a couple of different options.
    1. Require all prohibited persons to carry an identification card showing that status. Since the courts have ruled consistently that rights are forfeited due to the criminal actions/ mental status I don’t see this as a insurmountable invasion of rights.
    Please could quickly confirm the legitimacy of a person by simply checking Identification.

    In Texas, a person without a CHL only has to identify themselves to the police (unless stopped while driving). No requirement exists to present documentation of identity.

    As a CHL, I am required to go one step above that. I not only have to present my driver’s license but also my CHL anytime I am asked to identify myself to the law enforcement. Whether I’m carrying at that time or not.

    Seems a little backwards to me…let’s put the emphasis back on the prohibited person.

    Idea number # 2 is simply on the state identification or driver’s license designate the prohibition status. Again, less burden of proof on the citizen and more on the state.

    Call me stubborn but I think unless we start forcing the issue back from “We need to signal we are the good guys” to the state having to prove otherwise, we will never change the public perception.

    We allow the state/media/gun banners to set that perception that gun owners are dangerous unless we’ve taken steps to show otherwise.

    The vast majority of gun owners are safe consciousness and responsible gun owners…let more people walk around armed, open or concealed and soon enough the people will realize what we know.

  5. Quote from Sebastian:
    “But given the choice between constitutionally protected open carry with concealed carry being a privilege that can be subject to outright prohibition, or allowing the regulation of concealed carry, but not its prohibition, I think the latter is actually less destructive of the right.”

    While I agree, I worry about the RKBA crowd broadly accepting that doctine, for the usual “slippery slope” reasons. Once we indicate that we’re OK with this, the gun control crowd will then attempt to:

    – Stigmatize open carry in the eyes of the public and law enfrorcement to discourage people from OC’ing
    – Put futher restrictions on obtaining the signal, i.e. the concealed weapons permit, license to carry, etc.

    We’re already seeing this in PA. Here, OC is constitutionally protected and CC is licensed under the UFA. Most people don’t OC as they’re concerned about being hassled by property owners and police in front of friends and family for just going about their business, and the gun control crowd in the PA legislature has been trying to tighten the noose on possession of firearms and the UFA’s licensing statutes and for years.

    While I understand the need for a compromise, my fear is that compromise, or as I see it, appeasement, will only put us one step further down the road to a complete ban of all civilian carry and firearms ownership.

  6. Sebastian says:

    If you want a signal, how about a couple of different options.
    1. Require all prohibited persons to carry an identification card showing that status. Since the courts have ruled consistently that rights are forfeited due to the criminal actions/ mental status I don’t see this as a insurmountable invasion of rights.
    Please could quickly confirm the legitimacy of a person by simply checking Identification.

    The signal only works if it depends on the law abiding to comply. The criminal will just break the law or social convention, and masquerade as someone who is a non-criminal. In other words, they aren’t going to carry the card.

    One thing you could argue though, is that you can check someone’s criminal history from any hand held computer, so the governmental interest can be satisfied without having to require a license. In other words, you are stopped, you turn over some form of identifying information, and can be sorted on the spot. Of course, the state could argue that it doesn’t serve its interest, since the person could always lie. You could require people to carry government issued ID, but then you’re back to licensing.

  7. [quote]

    My argument is essentially that open carry is actually a severe burden on the right to carry a firearm in case of confrontation, and probably was also a burden even when the practice started becoming accepted as social custom in the 19th century. The reason it became social custom is because it likely served as a signal, e.g. a quick way to discern someone with criminal intent from someone without criminal intent.

    The various licensing scheme actually serve the same purpose, in that when law enforcement encounters someone who is armed, they have a quick way to sort friend from foe. It’s still just a signal.

    [/quote]

    This assumes a best-case scenario where confirmation of a license is always possible. It does not remove all risk in the mind of law enforcement. If the confirmation is unavailable for some reason, the licensee MAY be subjected to the same treatment as someone who does not possess such a license. The relative ease of generating believable official documents diminishes the certainty of the validity of carried credentials.

    I would offer that this dependence on (imperfect) signals is a large part of the problem.

    The concern for law enforcement safety could be addressed by policy and training that dictates all encounters be conducted assuming that the party encountered will be armed. I don’t mean for each encounter to be conducted as a felony stop. Rather, the mere possession of a firearm on one’s person would be treated as routine. If a person possessing a firearm was then determined to be a prohibited person, the appropriate action could then be taken.

    This would require adjustment of a lot of attitudes in the law enforcement community and the public at large. That could only be a good thing.

    Flame away….

  8. RAH says:

    A very good posting about OC vs CC

    Tubby45 from DefensiveCarry.com Wrote this I think it hits the nail right on the head for OC.

    My primary goal when I’m out and about (besides whatever I went out and about to do) is to go about peaceably and not be the victim of a violent crime. To that end I carry a firearm whenever I go out as well as follow all the other standard safety practices like maintaining situational awareness, staying out of high crime areas, and avoiding confrontation. I also have a larger overall goal of making it through my life without shooting anyone. Simply put, I don’t want to be responsible, legally or morally, for another’s death. Those two goals might appear at first blush to be mutually exclusive, and with concealed carry it would be a difficult set of goals to realize.

    Carrying a concealed firearm presents to a criminal that I am unarmed. Every study I’ve ever read, not most but every study, says that criminals will avoid an armed person or home when selecting a victim. That only makes sense, right? Robbers, rapists, or carjackers might be dumb and opportunistic, but they have the same instinctual sense of self preservation we all have. Hyenas don’t attack lions to steal the gazelle the lions have just killed. It’s all about risk management; are the potential gains (a tasty gazelle dinner) worth the potential pain and damage the lion’s teeth will cause, and does the hyena really need to test the lion to figure out the answer? No, the hyena can see the lion’s teeth and knows to stay well clear.

    Deterrent Value:
    When I’m carrying concealed I feel like my ‘teeth’ are hidden, and thus of no real deterrent value. If I appear unarmed then I am unarmed in the eyes of the robber, I appear as easy a target as almost anyone else out on the street. My probability of being a victim of a crime, violent or otherwise, is completely unchanged by the fact that I have hidden beneath my shirt the means to defend myself. My goal, however, is not to be a victim in the first place, remember? I don’t want to be a victim that fought back successfully and triumphed; I prefer to not be victimized at all. Concealed carry is good; it throws a wrench in the works for criminals who might see the teaming masses as a smorgasbord of financial gain. This deterrent effect is, nonetheless, indirect. At some point the thug will weigh the risks vs. the gains; is his current desperation for money/drugs/booze/gold grille greater than the gamble that one of those people might be carrying a gun? If he decides to play the odds, which helped along with surprise tip the scale in his favor, he will attack. Will his attack allow enough time for me to draw my concealed firearm to affect a defense? Maybe, but then again, maybe not.

    Remember, I don’t want to be a victim and I don’t want to shoot anyone. So how do I realize both goals; or how do I make them inclusive? I can do that through open carry. By making it clear and obvious that I am armed, that I have teeth, I tip the risk scale to the point that the criminal’s gains are far outweighed by the risk. There is no ambiguity when the thug is doing his risk assessment, there’s something right there in plain sight that can quickly and painfully change or terminate his life. You may not think his life has much value, but as I mentioned before, he has the same sense of self preservation as any other living creature and to him it’s every bit as valuable as yours is to you. It would be foolish to ignore this indisputable fact when you develop your overall tactical strategy.

    First One To Be Shot:
    There are some who criticize open carry and claim it will make you more of a target or ‘the first one shot’ when a robber walks into the 7-11, despite the absolute lack of credible evidence that this has ever happened. If the robber walks in and sees that you’re armed, his whole plan has encountered an unexpected variable. In bank robberies where he might expect to see an armed guard he will have already factored that possibility into his plan, but only for the armed guard, not for open or concealed carry citizens. No robber robs a bank without at least a rudimentary plan. Nevertheless, being present for a bank robbery is an extremely remote possibility for most of us regardless of our preferred method of handgun carry. Back in the 7-11, if he sees someone is armed he is forced to either significantly alter the plan or abort it outright. Robbing is an inherently apprehensive occupation, and one that doesn’t respond well to instant modifications. He is not prepared to commit murder when he only planned for larceny. He knows that a petty robbery will not garner the intense police manhunt a murder would. He doesn’t know if you’re an armed citizen or a police officer and isn’t going to take the time to figure it out. Either way, if someone in the 7-11 is unexpectedly armed, how many others might be similarly adorned and where might they be? Does this armed individual have a partner who is likewise armed behind him in the parking lot, someone who is watching right now? Self preservation compels him to abort the plan for one that is less risky. So we see that the logic matches the history; open carriers are not the first ones shot because it doesn’t make any sense that they would be.

    Surprise:
    Probably the most common condemnation of open carry comes from the armchair tacticians who believe it’s better to have the element of surprise in a criminal encounter. Although this was touched on in the previous paragraph about deterrence, I’ll expand on it specifically here because there are some important truths you need to consider before you lean too heavily on this false support. Surprise as a defensive tactic is based on unrealistic or ill-thought out scenarios. The circumstance where several street toughs surround and taunt you for a while like in some Charles Bronson movie is not realistic; the mugger wants to get in and out as fast as possible. In most cases you will have only seconds to realize what’s happening, make a decision, and react. Imagine you’re walking along the sidewalk when two gangsta looking teenagers suddenly appear at the corner coming in the opposite direction. You have only seconds to react if their intent was to victimize you. Do you draw your concealed firearm now or wait until there’s an actual visible threat? If they are just on their way to church and you pull a gun on them, you are the criminal and you may forever lose your firearms rights for such a foolish action. If you don’t draw and they pull a knife or pistol when they’re just a couple steps away, your only options are draw (if you think you can) or comply. Imagine staring at the shiny blade of a knife being held by a very nervous and violent mugger, three inches from your or your wife’s throat and having to decide whether or not you have time to draw from concealment. The element of surprise may not do you any good; in fact the only surprising thing that might happen is that your concealed carry pistol gets taken along with your wallet. The thug will later get a good chuckle with his buddies about how you brought a gun to a knife fight. The simple truth is that while surprise is a monumentally superior tactical maneuver, it is exclusively an offensive action, not a defensive one. I am not aware of any army that teaches using surprise as a defense against attack. No squad of soldiers goes on patrol with their weapons hidden so that they can ‘surprise’ the enemy should they walk into an ambush.

    It Will Get Stolen:
    Another common criticism of open carry is that the firearm itself will be the target of theft, prompting as criminal to attack simply to get the gun from you. Like the previous example of being the first one shot in a robbery, above, this is despite the fact that there is no credible evidence it happens. It also blindly ignores the more obvious fact that anything you possess can make you the target of a crime, be it a car, a watch, or even a female companion (girlfriend, wife, or daughter). Crooks commonly steal for only two reasons; to get something you have that they want, or to get something that you have so they can sell it and buy something they want. There are no Robins in the hood trying to help the poor by stealing from the rich. I don’t claim it could never happen; just that it’s so remote a possibility that it doesn’t warrant drastic alterations to your self defense strategies. If you believe otherwise, leave your watch, sunglasses, jewelry, and cell phone at home, hop into your Pinto wagon, and head out to do your thing.

    It Scares People:
    One other statement against open carry I hear is that it damages public perception of firearms owners, or that by carrying openly we are not being good ambassadors to the public. While there are some people who have a genuine fear of firearms, due either to some horrible past experience or anti-gun indoctrination, the majority of people are either indifferent to them or quite fascinated by them. I’ve never kept track of the dozens of fellow citizens I’ve encountered who have marveled at the idea of open carry, but I do know exactly how many have expressed displeasure at it; one. People are scared of many things for many reasons; however, pretending those things do not exist only perpetuates the fear. Someone who is disturbed by open carry is going to be every bit as disturbed by concealed carry. The only effective way to overcome a fear is to come to the intellectual realization that the phobia is based on emotion and not on fact. By being a firsthand witness that a firearm was carried responsibly and peaceably, and wasn’t being carried in the commission of a crime, one discovers their fear is not fact based, but emotional. Thus, open carry can be a very effectual way of helping to overcome the emotionally based fear of the firearm. After all, you’d be much more likely to believe in ghosts if you saw one rather than if you listened to a ghost story around a campfire. We give much more credibility to the things we experience than we do to the things we hear. The bottom line is that this argument is made by people who don’t or haven’t carried openly; those of us who do so on a regular basis have an entirely different experience.

    I’m Not Comfortable Carrying Openly:
    This is really the only reasonable argument against open carry for an individual. We all have a comfort zone for any aspect of our lives and we prefer to stay within that comfort zone. We all agree that it’s better to be armed and never need the firearm than it is to need it and not have it. There is a point where concealing your firearm becomes so problematic, due to conditions like temperature or comfort, that some choose to either leave it behind or carry in such a way that it would be difficult or impossible to draw it quickly. If it takes me five or six seconds to draw my firearm from deep concealment and I had sufficient time before hand to do so, I would prefer to use that five or six seconds to avoid the entire encounter. I’m glad we have concealed carry laws in most of the states; it empowers and protects not only us but the general public through the offset deterrent effect. Some of us, however, choose the more direct deterrent effect of open carry. The combination of the two makes the criminal’s job that much more risky, that much more dangerous, and that much more uncertain.

  9. The 19th and 20th century state cases holding that open carry cannot be banned, e.g., State v Kerner (NC) (holding no permit may be required to openc arry handguns in public) are by definition not “dicta”. Dicta is a statement by a court not necessary to resolve a case – sort of just “editorializing.”

    These open carry cases are still binding on state courts today.

  10. Sebastian says:

    I am talking federal court system here. I’m mostly thinking about what’s going to be protected in States that have little or no RKBA cases surrounding carry, like New Jersey.

  11. First, a “holding” is somthing that is not dicta.

    Second, I am unaware of any federal court issuing dicta that open carry is constitutionally protected – the Heller court suggested as much, and even suggested that the Second Amendment should be incorporated at n.23, but that’s it as far as I know.

    Third, state court open carry holdings ARE persuasive authority for federal courts should the Second Amendment ever be incorporated.

  12. Sebastian says:

    No doubt the federal courts would weigh the state cases heavily, but when I say dicta I’m referring to the quote from Heller above, which is part of the opinion, but isn’t directly addressing a matter before The Court.

top