This Story Behind Constitutional Carry / Permitless Carry
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Originally Posted On: https://www.uslawshield.com/constitutional-carry-2021/
What used to be a legal oddity confined to the tiny State of Vermont is now the law in more than a third of U.S. states, and another four states are looking to pass legislation this year. Constitutional carry is a growing trend that appears uncomplicated on the surface. No permit required for concealed carry should mean exactly that. But constitutional carry can also be a trap for the unprepared. Digging into the history, implementation, and current landscape of constitutional carry will help you avoid any potential pitfalls.
Readers who have applied for a license or permit to carry a concealed handgun or are familiar with the firearms laws of their state have likely come across the terms “shall issue,” “may issue,” and “constitutional carry.” These terms have very specific—and important—legal implications.
What Are “Shall Issue” and “May Issue” Carry States?
Most states are “shall issue” states. This means that if an applicant satisfies the legal requirements and completes whatever training course may be required under state law, the state shall—or must—issue the applicant a permit or license to carry a handgun. Put simply, if an applicant ticks all the boxes as required by state law, the government authority in charge of licensing or permitting handgun owners who wish to carry in public is obligated to issue a license to the applicant.
“May issue” states, on the other hand, means a state may issue a license or permit to carry to an applicant, but they do not have to do so. “May issue” states afford a certain amount of discretion to the permit-issuing authority (typically the state’s police or local sheriff’s department) to determine whether an applicant should receive a license or permit to carry concealed. For example, in California, a county sheriff may issue a license if, in addition to other legal requirements, the applicant demonstrates proof of “good moral character and good cause to carry a handgun.”
In a “may issue” state, even if you satisfy all legal requirements to obtain a license or permit to carry a handgun—completing the training course, paying the requisite fees, passing a background check, etc.—you’re still not guaranteed a license or permit to carry a handgun. Receiving a license or permit to carry is entirely up to the permit-issuing authority.
What Is Constitutional Carry?
“Constitutional carry” is a broad term that is applied to states that do not require a license or permit to carry a handgun. Originally called “Vermont carry” after the first state to enact permitless concealed carry, the name “constitutional carry” has caught on in recent years as a reference to the Second Amendment of the Constitution. If your state is a constitutional carry state, you typically don’t have to worry about whether it is a “shall issue” or “may issue” state.
This surge in popularity has led many proponents of constitutional carry to point to the text of the Second Amendment of the U.S. Constitution as their “permit” or “license” to carry a handgun in public. It’s their position that every person who is not prohibited by law from legally owning a handgun should be free to carry it openly or concealed in every public place without fear of prosecution by the government for simply exercising their rights. The final phrase of the Second Amendment truly sums up their beliefs when it comes to governmental oversight of handgun ownership and carrying as a right that “shall not be infringed.”
It’s important to note that even though constitutional carry states allow for permitless carry, restrictions such as age, location, and residency may still apply. Additionally, constitutional carry laws typically apply only to handguns. So, a constitutional carry state does not necessarily mean a non-prohibited person may openly carry any other weapons, including long guns, in public.
A Growing Trend?
When President Reagan was elected, there was only one constitutional carry state: Vermont. Now there are many more, along with several states in the process of moving states to constitutional carry.
In 2008, the United States Supreme Court issued a ruling against an unconstitutional permitting requirement in District of Columbia v. Heller. In addition to slapping down what was essentially an illegal handgun ban, the Supreme Court’s decision included several rulings related to the carrying of firearms, including holding that the Second Amendment protects an individual right of firearms ownership for the purpose of self-defense and is not connected with any militia or military purposes. The Court also ruled individual self-defense is “the central component” of the Second Amendment, with handguns deemed the primary defensive weapon of choice specifically protected by the Second Amendment.
The Court also interpreted the phrase “bear arms” to mean: “wear, bear, or carry…upon the person or in clothing or in a pocket, for the purpose…of being armed and ready for offensive or defensive action in a case of conflict with another person.”
In 2010, the Supreme Court in McDonald v. City of Chicago once again examined the Second Amendment and self-defense as it did in Heller, but with one important caveat—this time it was examining a state’s responsibilities under the Second Amendment, not the District of Columbia (which is under the exclusive control of the federal government).
McDonald importantly held that the Second Amendment is fully applicable to the states and that individual self-defense is its “central component.” This means states are prohibited from enacting bans on handguns for self-protection in the home.
Taking these two important cases into consideration, it is clear the Second Amendment restrains the government from interfering with the possession of handguns for self-defense by law-abiding folks. Constitutional carry supporters point to these two cases as proof that there are limits to what state and local governments may pass as laws intending to restrict the right to bear arms, both at home and in public.
Which States Allow You to Carry a Gun Without a Permit?
As of this writing, the following 20 states have enacted some type of unlicensed (“constitutional”) carry:
- Alaska, Arizona, Arkansas, Idaho, Iowa (effective July 1, 2021), Kansas, Kentucky, Maine, Mississippi, Missouri, Montana, New Hampshire, North Dakota, Oklahoma, South Dakota, Tennessee (effective July 1, 2021), Utah, Vermont, West Virginia, and Wyoming.
- In addition, while not conventionally considered “constitutional carry,” the six states of Delaware, Louisiana, Nevada, New Mexico, North Carolina, and Virginia allow the permitless open carry of a handgun.
Finally, the State of Texas passed its version of constitutional carry—HB 1927. Texas Governor Greg Abbott followed through on his intention to sign constitutional carry into law. Texas residents will be able to enjoy permitless carry when the law goes into effect on September 1, 2021.
It is vital for law-abiding folks to keep apprised of current laws before they take advantage of any “constitutional carry” states, as some include language limiting the right to citizens of that state exclusively.
Each state has its own laws—in some states, even neighboring counties and cities may have wildly different rules and punishments—which could mean the difference between going home with a warning or going to prison!
How It Works
Why is it that some states have constitutional carry, while others do not? Why doesn’t the federal government get to decide for all states? While the federal government does have some say in the regulation of firearms and carry (think: commerce in firearms, federal bans on felons possessing firearms, etc.), the Tenth Amendment to the U.S. Constitution reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The individual states, then, may decide for themselves where their residents are allowed to carry, whether a permit is required, and if so, what those requirements consist of. A review of gun laws in all 50 states shows the law is as varied as the landscape of our great country itself.
Do I Need a Permit?
If you live in a constitutional carry state, it would seem that you don’t need a permit to carry, right? But what if you want to visit another state? All states (except Vermont) that have enacted constitutional carry kept their permitting systems intact so that when residents are traveling out of state, they can still carry (assuming the destination state honors their permit). Similarly, having a handgun license or permit is a good idea even if you’re headed to a permitless carry state, since at least two states (North Dakota and Tennessee) restrict permitless carry to their residents. Non-residents can still carry concealed in those states, assuming they have a valid concealed carry permit (or license to carry) from their resident state that is honored in North Dakota or Tennessee. It’s always a good idea to research the carry laws in the state you’re visiting before setting off on your journey.
Where Can I Carry?
In the states listed, it’s important to note that constitutional carry does not supersede other state or federal laws restricting where you can and can’t carry. Just because you’re in South Dakota doesn’t mean you can waltz into the post office with your concealed firearm; that’s still illegal, regardless of South Dakota law. And in Utah, it’s legal to carry in bars but illegal to be intoxicated and carry at the same time; the state defines intoxicated as a blood alcohol concentration (“BAC”) of 0.05 or greater. Constitutional carry doesn’t supersede federal law, and it doesn’t negate other carry restrictions in the state.
Additionally, some states allow you to carry in more places if you have a carry permit than if you’re carrying under the constitutional carry law. In Arizona, if you’re carrying concealed without a permit, you’re not allowed to carry in a restaurant that serves alcohol, but if you have a valid Arizona concealed carry license, you can. You can’t be drunk and carry, obviously.
Missouri is another state where having a permit is beneficial. In Missouri, local jurisdictions can restrict permitless open carry. However, if a person has a valid Missouri concealed carry permit, they’re exempt from any local restrictions on open carry.
Know the Laws
Whether your state is a constitutional carry state or you’re traveling to a permitless carry state, it’s vital that you remain up to date on the laws for each jurisdiction. One of the difficulties with constitutional carry is that the implementation in many states has been different. Oklahoma, for example, passed legislation allowing constitutional carry. When this was announced in the news, most residents assumed that the permit requirement was eliminated, and constitutional carry was now allowed in every place that formerly required a permit.
In reality, the constitutional carry legislation did not remove the word “license” from several criminal statutes and a permit is still required to carry in many places. Even with constitutional carry, it’s still illegal to carry in bars and on school grounds in Oklahoma unless you have a valid carry permit. So even when constitutional carry is an option, law-abiding gun owners still need to protect themselves from legal trouble.
What’s the Benefit?
While it’s popular to think of constitutional carry as a way for everyone to carry a gun, that’s not the case. Just like there are requirements to get a concealed carry permit, all the states with permitless carry have requirements for someone to carry concealed without a license. The majority of the states with permitless carry require a person to be at least 21 years old and not be legally prohibited from owning a firearm in order to carry concealed. Those requirements are so similar to the steps necessary to get a carry permit that constitutional carry legislation failed in Indiana because the governors of both states didn’t believe the single additional step of applying for a permit was a significant enough burden on gun owners.
In states that have legalized permitless carry, many residents still choose to get a concealed carry permit (“CHP,” “LTC,” “CCW,” etc.) because while constitutional carry is a valid option, it may not be the best option for them. Some gun owners in constitutional carry jurisdictions may choose to maintain their current license or permit to carry a handgun.
The reasons for obtaining or maintaining carry permits in constitutional carry states include possible reciprocity with other states—which, if recognized, would allow the gun owner to carry their handgun according to the laws of the state they are visiting; expanded locations where carrying a handgun is authorized; greater access to handgun training; and expedited federal background checks for purchasing firearms from a licensed gun dealer.
If you have questions about your state’s carry laws or the differences between “shall issue,” “may issue,” and “constitutional carry” laws, please contact U.S. LawShield for the legal education you can trust.
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