The licensing of concealed handguns for lawful protection: support from five state Supreme Courts.

• Author: Kopel, David B.

All but half a dozen states have a state constitutional guarantee of the right to keep and bear arms. (1) All but a dozen states have a "shall issue" law for concealed handguns. (2) Under such laws, an adult with a clean record who passes a background check and (in most states) a safety class can obtain a permit to carry a concealed handgun for lawful protection. (3) During 2003-2004, five state supreme courts were asked to determine whether there was a conflict between state constitutional guarantees and concealed handgun laws. This Article examines the five state decisions and finds that although there were important differences between the cases, all five courts were broadly deferential to legislative decision-making about concealed handguns.

In New Mexico and Missouri, after the legislature enacted concealed handgun licensing laws, the laws were challenged on the grounds that they violated the state constitutional right to arms--since in both New Mexico and Missouri, the arms right guarantee explicitly excludes concealed handguns. The New Mexico and Missouri Supreme Courts rejected the constitutional challenge; both courts ruled that the constitutional clause about concealed carry means that the legislature has broad discretion, not that the legislature is forbidden to enact a licensing system.

The constitutions of Ohio and Wisconsin also guarantee the right to keep and bear arms, and have no text excluding concealed handgun carrying from the scope of the right. However, both states had laws which almost completely prohibited the carrying of concealed handguns. When the Ohio prohibition was challenged, the Ohio Supreme Court ruled that the prohibition of concealed handgun carrying was constitutional because state law still allowed the carrying of unconcealed handguns. As a result, large numbers of Ohioans began carrying unconcealed handguns and, in response, the Ohio legislature quickly enacted a "shall issue" law to legalize concealed handguns.

In Wisconsin, the Supreme Court ruled that the concealed handgun prohibition was unconstitutional insofar as it applied to a person's home or place of business, but was constitutional as applied to all other locations.

Rhode Island's court faced the most complicated issue because Rhode Island has two concealed handgun licensing laws: a discretionary law for licensing by the attorney general and a mandatory law for licensing by towns and cities. The court found both laws to be consistent with Rhode Island's constitutional right to bear arms.

1. NEW MEXICO AND MISSOURI: BECAUSE CONCEALED HANDGUNS ARE EXPLICITLY EXCLUDED FROM THE CONSTITUTIONAL RIGHT, THE LEGISLATURE MAY CREATE A LICENSING SYSTEM

   1. New Mexico

      The New Mexico Constitution states:

      No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms. (4) In 2001, the New Mexico legislature enacted a Shall Issue concealed handgun licensing law. (5) The law gave New Mexico's larger cities the choice to opt out of the mandatory licensing system. (6) In 2002, the New Mexico Supreme Court declared the law unconstitutional because the municipal opt-out conflicted with the constitutional rule that: "No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms." (7)

      The ruling seems odd because the prior sentence of the state constitutional right to keep and bear arms explicitly states that "the carrying of concealed weapons" is not part of the constitutional right to keep and bear arms. (8) Nevertheless, the court ruled that concealed carrying was at least "an incident of the right to keep arms," even if concealed carrying was not part of the actual right itself. (9) Finding that the municipal discretion exemption was not severable, the court invalidated the entire Shall Issue law. (10)

      In 2003, the New Mexico legislature enacted a new Shall Issue law, this time making the law uniform statewide with no municipal opt-out. (11) Opponents of the law brought suit, claiming that the concealed gun licensing law was unconstitutional because of the constitutional language: "but nothing herein shall be held to permit the carrying of concealed weapons." (12)

      The argument bordered on the frivolous. The unanimous supreme court explained the obvious meaning of the constitutional language:

      The constitutional provision, on its face, means nothing in Article II, Section 6 shall be held to permit the carrying of concealed weapons. The Constitution neither forbids nor grants the right to bear arms in a concealed manner. Article II, Section 6 is a statement of neutrality, leaving it to the Legislature to decide whether, and how, to permit and regulate the carrying of concealed weapons. To read Article II, Section 6 as a prohibition against carrying concealed weapons ... would require us to excise the word 'herein' from the face of the Constitution. It is not in our power to do so. (13) If the plaintiffs' reading of the constitutional language were correct, then it would be unconstitutional for the New Mexico legislature to allow concealed weapons under any circumstances; even allowing police officers to carry concealed weapons would be unconstitutional. (14) The court pointed out that an absolutist interpretation would be inconsistent with New Mexico history:

      New Mexico has long regulated concealed weapons, allowing it in some circumstances and prohibiting it in others. At the time the Constitution was adopted, the territorial law of New Mexico had for many years prohibited the carrying of concealed weapons in most circumstances while allowing concealed weapons to be carried outside of settlements, at one's residence, in the lawful defense of person or property, for protection while traveling, and by law enforcement officers. [citation omitted] That same construct of generally prohibiting concealed weapons while creating limited exceptions for their use, has continued in effect to the present. [citation omitted] Under Section 30-7-2, the Concealed Handgun Carry Act does no more than add another exception to the general prohibition against carrying concealed weapons: carrying with a concealed handgun license. [citation omitted] Under Petitioners' reading of Article II, Section 6 none of these laws would be constitutional. If Article II, Section 6 were an absolute prohibition against carrying concealed weapons, the Legislature could not have permitted it in certain instances. Yet it has done so for over 100 years ...(15) Thus, claim that the New Mexico Constitution required absolute prohibition of concealed handguns "would put this Court at odds with at least a tacit understanding on the part of the people and the Legislature as to the clear meaning of Article II, Section 6 of the Constitution." (16) The court also pointed out that the Montana and Colorado constitutions have very similar language in their right to bear arms guarantees, and both states also allow concealed handgun licensing. (17)

      In sum, the New Mexico court relied on the constitutional text and looked to how other states have applied similar text. The court also found that long-established and consistent historical practice provided an important guide to understanding state constitutional guarantees of the right to arms.

   2. Missouri

      The issue in Missouri was nearly identical to that in New Mexico. The Missouri Constitution states: "That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons." (18) The language about concealed weapons had been added when Missouri revised its constitution in 1875. (19) The 1875 revisers were concerned about a decision of the Kentucky Supreme Court which had found a concealed weapons prohibition to be in violation of the Kentucky right to keep and bear arms. (20)

      Concerns about terrorism appear to have made the American public more supportive of defensive gun ownership and use, so it was perhaps not a coincidence that September 11, 2003, was the day the Missouri legislature over-rode the Governor's veto and enacted the Concealed-Carry Act. (21)

      When the new Shall Issue statute was challenged in a lawsuit, the unanimous Missouri Supreme Court began its arms rights analysis by explicating the constitutional text. (22) Rejecting the plaintiffs' theory that the Constitution required total prohibition of concealed handguns, the court explained:

      Read in proper grammatical context, and giving the words their common usage, the clause has no such meaning. To be sure, plaintiffs are correct that the clause is couched as an exception or limitation on the constitutional 'right of every citizen to keep and bear arms....' But it means simply that the constitutional right does not extend to the carrying of concealed weapons, not that citizens are prohibited from doing so, or that the General Assembly is prohibited from enacting statutes allowing or disallowing the practice. Parsing the clause proves the point. The subject is the word 'this,' which refers back to 'the right of every citizen to keep and bear arms....' The operative words are 'shall not justify.' 'Shall not,' which are words of prohibition, modifies 'justify,' which is: 1a: to prove or show to be just, desirable, warranted or useful: VINDICATE ... b: to prove or show to be valid, sound or conforming to fact or reason: furnish grounds or evidence for: CONFIRM, SUPPORT, VERIFY ... c(1) to show to have had sufficient legal reason ...

      Thus, the clause in its entirety must be read in this way: 'but this [the right of every citizen to keep and bear arms ...] shall not justify [shall not warrant...