Hidden or on the Hip: The Right(s) to Carry After Heller

James Bishop

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The right to carry a loaded firearm—either openly or concealed—has never been more controversial.  The country is still reeling from shootings in Florida and Arizona by gunmen who obtained and carried their weapons in accordance with permissive state laws, and a national debate is raging over self-defense and access to handguns.

More than forty U.S. states issue concealed-carry permits to any adult who is not a felon or has been judged mentally unfit, and since the early 1990s the number of such permit-holders has expanded.  But a few states like California, New York, and Illinois prohibit concealed carry, or require applicants to show good cause to fear for their safety before a permit will issue.  This Note briefly examines the array of state laws, dividing them broadly into mandatory “shall-issue” statutes that restrict the licensing agent’s power to deny permits, and discretionary “may-issue” statutes that give the licensing agent virtually unrestricted discretion to grant or deny applications.  In addition, it describes a handful of oddities, including states like Arizona that allow concealed or open carry without a permit at all.

In the wake of the Supreme Court’s landmark decision in District of Columbia v. Heller,1 commentators and lower courts have struggled to divine the limits of the right to carry from the Court’s Delphic pronouncements.  The majority agreed that the right to keep arms necessarily included the rights to own a handgun and to keep it loaded and ready in the home for self-defense, but neither Heller nor its follow-up McDonald2 reached the vital question of the right to “bear” arms—particularly, whether the Second Amendment protects the right to carry firearms outside the home.

The Heller majority addresses the right to carry in dicta, noting that “[f]rom Blackstone through the 19th-century cases, commentators and courts routinely explained that the right [to carry arms] was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” and noted that “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.”3

Municipalities, courts, and commentators who were unsympathetic to Heller’s holding have found in these words a ray of hope, and have argued in briefs, newspapers, blogs, and legal journals that the Second Amendment protects no right outside the home: that states are free to prohibit concealed carry, and thus have the lesser right to issue permits only in the licensing agent’s discretion.

This Note argues that their hope is misplaced.  Heller’s dicta is a roadmap to the Court’s carry jurisprudence, but the key to understanding carry is to read the 19th century state high-court cases cited in Heller.  Although these cases hold that a state can ban concealed carry, they rest on a key fact: each of the states allowed open carry of loaded firearms, and therefore the courts reasoned that the right to bear arms had not been completely infringed.

This factor has been largely ignored by lower courts and by scholars, but this Note argues that it defines the carry right as a right with two alternative outlets for its exercise.  A state may ban one form of carry only if it allows free exercise of the other, but it must allow one.  Under the alternative outlet doctrine, states that allow concealed carry may ban open carry—as Texas does.  Likewise, states could—like Delaware, and until recently Wisconsin—allow open carry and ban all concealed carry.  But states cannot ban open carry of handguns while issuing concealed carry permits only on a discretionary basis.  By this Note’s count, state laws in California, Hawaii, Illinois, Maryland, New Jersey, New York, Rhode Island, and the District of Columbia impermissibly burden both alternatives, and are vulnerable to challenge.

This Note examines two such challenges percolating through the lower courts.  The first, Kachalsky,4 challenges Westminster County’s discretionary licensing standard for concealed-carry permits.  It was brought in New York federal court by the attorney who successfully argued Heller and McDonald, and is currently pending before the Second Circuit.  The second, Peruta,5 started life as a pro se challenge by a retired law enforcement officer to San Diego county’s discretionary licensing standard, but has since picked up dedicated counsel, national attention, and a host of amicus briefs at the Ninth Circuit, following summary judgment for the County in district court.  Peruta is also notable because the trial court adopted the alternative-outlet theory, holding that the state could not ban both outlets for the right to carry without infringing Mr. Peruta’s Second Amendment right to carry.6

If Kachalsky, Peruta, or Woollard7 from the Fourth Circuit makes it to the Supreme Court first, the right to carry will be squarely in issue.  Reading the tea-leaves in Heller and McDonald, this Note concludes that the Court will find that the Second Amendment guarantees the right to carry a loaded handgun outside the home for self-defense, but that states can freely ban or burden one outlet for the right so long as they guarantee the other.

This prediction begs the question of what form of carry reluctant states like New York, California, and Maryland should adopt following a defeat in the courts.  Rational states should allow whichever outlet for the right to carry is the least costly, disruptive, and dangerous.  This Note examines the empirical evidence around incidence of carry and crime rates concludes that it is at best indeterminate.  Nationally, the number of guns continues to climb and concealed-carry permits are at an all-time high, even as the crime rate has dropped—but whether these factors have any causal relationship is anyone’s guess.  While studies showing that shall-issue concealed-carry statutes actually reduce crime aren’t as clear as their supporters claim, no state that has adopted such a statute has suffered a rise in crime.  Moreover, some states with lax carry laws—like Vermont—have extraordinarily low crime rates, while other states like Illinois are plagued with violent gun crime despite some of the most restrictive firearm laws in the nation.

Concluding that statistical data alone is unlikely to yield a robust predictive model, this Note analyzes the historical practice of states, noting in particular that five states that historically allowed open carry of firearms now allow only concealed, exactly reversing the rule that prevailed at common law, which despised concealed carry for its overtones of “secret advantages and unmanly assassinations.”8

The reason for this shift is unclear, but probably reflect a concern about displays of weapons provoking violence or disturbing the peace, a concern likely bought with hard-earned experience.  Alternatively, legislators in these states may believe that there is a crime reduction benefit to a policy that denies criminals the ability to distinguish armed from unarmed citizens, and thus makes every attempted robbery, rape, or assault a potentially lethal gamble for the felon.  A final reason is that these states may be concerned that open carry exposes law-abiding citizens to police attention for exercising a constitutional right.  To the extent that these states want to avoid civil liability, they have an interest in channeling carry into a socially invisible form.

Consequently, despite the common-law’s endorsement of open carry, this Note concludes that concealed carry is the superior alternative even for industrialized urban states.   By comparison, open carry is more disruptive and potentially harmful to public safety, offers less crime-reduction benefit, and raises difficult constitutional questions by exposing law-abiding open carriers to heightened police attention.  The decision of five conservative and pro-gun states to switch to concealed carry, given their long collective experience with open carry, speaks volumes about the relative social utility of these alternative outlets for the Second Amendment right to bear arms.

Acknowledgments:

James Bishop is a 2012 graduate of Cornell Law School.

This essay is based on James Bishop, Hidden or on the Hip: The Right(s) to Carry After Heller, 97 CORNELL L. REV. 907 (2012).

Copyright © 2013 Cornell Law Review.

  1. District of Columbia v. Heller, 554 U.S. 570 (2008).
  2. McDonald v. Chicago, 130 S. Ct. 3020 (2010) (incorporating the Second Amendment against the states).
  3. Heller, 554 U.S. at 626.
  4. Kachalsky v. Cacace, No. 10–CV–5413 (CS), 2011 WL 3962550 (S.D.N.Y. Sept. 2, 2011).
  5. Peruta v. Cnty. of San Diego, 758 F. Supp. 2d 1106, 1114–15 (S.D. Cal. 2010); Peruta v. Cnty. of San Diego, 678 F. Supp. 2d 1046 (S.D. Cal. 2010).
  6. See Peruta v. Cnty. of San Diego, 758 F. Supp. 2d 1106, 1114-15 (S.D. Cal. 2010).
  7. Woollard v. Sheridan, 2012 WL 695674 (D. Md. 2012).
  8. State v. Chandler, 5 La. Ann. 489, 490 (1850).

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