The Heller decision (2008) was an important Supreme Court case. It confirmed that the 2nd Amendment grants a right to individuals and not just militias. The case was about keeping firearms at home, not about bearing them in public, but the reasoning would suggest that the individual right encompasses both. The Court, however, did not say as much, and the particular law declared unconstitutional was not about the public carry of firearms, only about keeping a gun at home. Yet Heller does say clearly for the first time in the Court’s history that you can keep arms.
Now, in New York State Rifle & Pistol Association Inc. v. Bruen, the Court has made its decision about bearing arms.
Months ago, when I listened to some of the oral arguments in Bruen and thought about the issues, I predicted the outcome. New York was one of about a half dozen states that both (1) required a license to carry a gun in public and (2) would not issue one without a demonstration of special need. In Liberty I wrote, “I believe the Court will upend these rules, gently. It will say that, although the right may be regulated, the 2nd Amendment right to bear arms is not limited to the home and that New York’s regulation of that right is not reasonable.”
That is exactly what happened. You can bear arms.
Most people, including most experts, tacitly assume that the Bruen case is about concealed carry. It is not.
Now that we know the “special need” licensing regimes are unconstitutional, for the next 30 years or more we will be fighting in court over how much state and local governments can restrict public carry of guns by other means. Some states will seek new ways to make it difficult to get a license. They will require applicants to post a bond. They will impose high licensing fees. They will require extensive safety courses. They will have long waiting periods. They will require consent to a background investigation.
And when they do issue licenses in compliance with Bruen, they will restrict the scope of the licenses. They will say you can’t carry a gun in or near a school or in a church or on public transport or in post offices, courthouses, airports, campuses, etc. All these requirements and restrictions will be litigated. Overall in both Bruen and Heller, the Court suggested that the Constitution would permit many restrictions on the right to carry firearms in public — even though, in Bruen, New York’s licensing scheme was held not to be constitutional. The constitutional limits on those restrictions will be determined over a period of decades.
But I believe that the most interesting question prompted by Bruen is about open carry, and it may never reach the courts. I think that most people, including most experts, tacitly assume that the Bruen case is about concealed carry. It is not. Neither the Constitution nor the Court speaks specifically about a right to carry a concealed weapon. The right to bear arms does not necessarily include the right to conceal a weapon.
So I ask, is there a right to carry concealed? In other words, if a state permits open carry, perhaps with extensive licensing requirements, can it totally prohibit concealed carry? I am confident that the answer is yes, concealed carry can be prohibited. I believe not only that “yes” is the correct answer as a matter of constitutional law but also that the Court would agree with me. If you can’t carry concealed but can carry openly, is your right to bear arms really being infringed?
When I bump into you at the park, I prefer to know whether you have a .45 strapped to your hip.
Considering how many restrictions on public carry the Court seems willing to allow, it would very likely allow the banning of concealed carry, as long as people have reasonable rights to carry openly.
I also believe that permitting open carry may be better policy than permitting concealed carry. When I bump into you at the park, I prefer to know whether you have a .45 strapped to your hip.
The illiberal states, the states hostile to 2nd Amendment rights, are going to be forced to issue a lot more licenses to carry than they do now. A majority of citizens in such states won’t like it. They might prefer that license holders be forced to carry openly. If only open carry is permitted, public opprobrium in cities such as San Francisco, Boston, and New York might discourage a lot of people from getting a license and carrying. And it would make enforcing restrictions on where you can carry a lot easier.
There are already many states that permit open carry, even without a license. But they are the states most friendly to gun rights. The illiberal states generally do not allow open carry. They probably will not even consider my scheme of open-carry-only laws and licenses. That’s why we may never see a plaintiff who has the right to carry openly sue for the right to carry concealed.
That’s a shame. I would like another of my predictions to be proven right. Also, it would be an interesting social experiment to see how many people choose to carry a pistol openly in big cities that are firearm-phobic.
