‘Constitutional’ Carry? Maybe Not

A young man tests a Sig Sauer rifle during the annual National Rifle Association (NRA) convention in Dallas, Texas, May 5, 2018. (Lucas Jackson/Reuters)

There are reasons to be skeptical of an effort to do away with Texas’s requirement of a permit to carry firearms in public.

The state of Texas is considering a “constitutional carry” law, which would do away with the requirement that Texans get a permit before carrying a firearm. Under constitutional carry, so-called, if you are eligible to purchase a firearm, then you are eligible to carry one.

I am of two minds about this.

I am a Second Amendment advocate, and I would prefer that both Congress and the courts recognize, as plainly as possible, that the right to keep and bear arms mentioned in the Constitution has nothing to do with hunting or recreational shooting — there are no hobbies in the Bill of Rights. The Second Amendment protects the rights of Americans to keep and bear war-fighting arms, one of the rights that traditionally distinguishes citizens from subjects.

That makes regulation a dicey matter, because the classes of firearms anti-gun activists want to prohibit are the ones the Second Amendment exists to protect — including the AR-15 and semiautomatic handguns, not just granddad’s deer rifle. (Although dear ol’ pawpaw’s deer rifle was a “weapon of war” in its day, too: The classic .30-06 hunting round was developed for the U.S. military and adopted by the army in 1906, hence the designation — .30 caliber, ’06 model.) When the gun-grabbers complain that thus and such a firearm was designed for the primary purpose of killing people, the answer is, “Well, yes — that’s precisely the point.”

Anti-gun types like to mock that, painting Second Amendment activists as a bunch of fantasists who are Rambo in their dreams and Babbitt in their waking hours. That is . . . not entirely unfair, at least not in all cases. It is true that gun-owning Americans are unlikely ever to use their firearms to defend their families from criminals, much less use them to battle tyranny. But it also is true that 99.44 percent of Americans will never have an interesting or original thought or write a sentence that is worth reading once, much less a sentence that is worth remembering, and we keep the First Amendment around all the same. There’s a good reason for that; it’s not just sentimentality.

Unlike some of my legal-minded friends and colleagues, I think the doctrine of “incorporation” — applying federal constitutional restrictions to the states — is a little bit sketchy. The First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”; it says nothing about the state legislature of New Jersey. That doesn’t mean that our civil rights can be legitimately taken away by the states — it means that state constitutions need their own charters of rights, which, of course, most of them have. The Texas bill of rights, for example, contains two separate provisions regarding religion (one securing freedom of worship, the other prohibiting “appropriations for sectarian purposes”), a free-speech guarantee, rules about searches and bail, etc. It also recognizes a right to keep and bear arms, one that is in some ways clearer than the one recognized by the Second Amendment: “Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.”

Of course, the fact that the legislature may regulate the wearing of arms does not mean that it must, but it seems to me that there is some tension between the notion that unpermitted carry is a constitutional mandate and the Texas constitution’s reservation of regulatory discretion to the state. My own inclination is to treat the Second Amendment as though it means just what it says as a federal matter, while being a good federalist and making room for considerable variation in regulation at the state level. I have lived in the South Bronx, and I have lived in a remote corner of Colorado with an elk-to-biped ratio of 24:1 — and I do not think that both places need to maintain precisely the same firearms laws. It is both constitutionally sound and prudent to maintain a good deal of local diversity, including within the states: Houston and Terlingua are not very much alike.

I’d love to sign off without reservation on constitutional carry, because I believe the right recognized (not granted) by the Second Amendment is an important one. “We win, you lose!” is always a satisfying outcome — but, sometimes, it is the wrong outcome.

We love our guns in Texas. Last week, I went to a sporting-goods store outside Dallas that had a hand-lettered sign taped to the door informing irritated shoppers that the day’s ammunition delivery had not arrived; inside, the ammo section was indeed picked bare with the exception of a few boxes of odd-duck calibers. (If you happened to be looking to load a rifle chambered for the 6.5×55mm Swedish cartridge, you were in luck — Dallas-area moose beware.) It has been that way for more than a year, since the onset of the coronavirus epidemic. And we aren’t hoarding all that ammo, either: Getting a lane at a popular shooting range is harder than getting a table at Dorsia.

A parishioner at my church observes that the guards who work the doors on Sundays probably are superfluous and that any would-be troublemaker entering the church would be likely to encounter the Almighty sooner rather than later.

I am a conservative, and so I support Americans’ right to keep and bear arms. But I also do not live under a rock, and so I know that most Americans cannot be trusted to safely operate a mobile phone without endangering the lives of other people, e.g., by scrolling through Instagram while driving 82 m.p.h. down the George Bush Turnpike in a Lexus ES-350. It is true that the states that have passed constitutional carry — and those such as Vermont that simply never bothered to enact gun laws in the first place — have not seen elevated levels of firearms-related crime or accidents. But I am not persuaded that “studies say” should be the end of the argument, and I don’t think that sitting through a class on safe gun-handling, putting ten rounds into the circle at a reasonable distance, and passing a background check every couple of years would constitute an unreasonable burden on this civil right.

In fact, the last time I sat through a concealed-carry class, there were a couple of people in attendance who clearly should not be carrying a firearm in public — one was trying to shove .45 ACP rounds into a 9mm pistol and asked a lot of questions about the circumstances under which it is permissible to shoot a police officer, something the police officer teaching the class took note of.

(To be fair, this was in Dallas, where the police sometimes break into your house and shoot you for no reason at all.)

Licensure has the advantage of providing us with a formal opportunity to inform those ineligible to carry in no uncertain terms that they may not legally carry a firearm, whereas under an unlicensed-carry regime someone illegally carrying a gun might plausibly plead ignorance to his ineligibility in many circumstances.

For all of our cowboy pretense, Texas is not very much like Wyoming — it is a big state full of big cities with big-city problems. Introducing the unlicensed carrying of firearms into Dallas or Houston does not seem to me an obviously desirable aim — Texas already has a perfectly workable permitting system, and abolishing it is a textbook example of a solution in search of a problem.

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