[Ed: This piece, like any not otherwise labelled, does not represent the official positions of DRGO , but is quite thought-provoking and well worth a read.]
Progressives cry-out for “common sense” gun laws, to which gun owners respond: “What, specifically, do you propose?” Congress, with the consent of President Trump, is poised to respond with the National Reciprocity Act compelling all 50 states to honor concealed carry permits issued by sister states. The Supreme Court could accept an appeal that might compel the last few “may-issue” states to write “shall-issue” laws entitling citizens to carry permits for their jurisdictions. Either outcome, by Congress or the Supreme Court, would tie the hands of state legislatures.
Democrats, the historic champions of states’ rights, decry the threatened “race to the bottom” whereby gun owners from Pennsylvania or Vermont will be able to carry guns in New York or New Jersey without meeting the latter states’ rigorous standards. Then must the right of the People to carry guns be dictated from Washington?
Are there any common-sense proposals worthy of debate among We the People?
My answer is “No”. Gun policy is so polarizing today that there is no patience for debate over possibilities for a popular resolution. We are in a classic “Mexican stand-off”. Will gun-rights advocates muster 60 votes in the Senate from among the 80 Senators representing right-to-carry states? Will the meaning of “. . . shall not be infringed” tip for or against “the right to . . . bear arms”? We don’t know. We can say only that trigger fingers are getting twitchy and time is running out for any resolution that might generally be acceptable.
Presently, a dozen states permit concealed carry with no permit requirement at all. The remaining 38 states and the District of Columbia require that the applicant meet two or more of the following diverse prerequisites:
- Background check for criminal or mental-health prohibition
- Gun-safety training
- Live-fire marksmanship qualification (24 states)
- Fee (ranging from $10 – $430)
- In-state residency (7 states)
- Security industry employment
- Political patronage, wealth or celebrity status
- Test on the law of self-defense (only DC)
Which of the foregoing meet the “common sense” smell test? Which might play an important, and constitutionally permissible, public safety role? Numbers 1, 2 and 3 are typical of many shall-issue regimes. Numbers 5, 6 and 7 seem more dubious and objectionable, as well as some of the very high fees involved in number 4. Number 8, the “law of self-defense” test is a seemingly common sense prerequisite imposed only by the District of Columbia, which became shall-issue in 2017 by order of its federal Circuit court.
In the United States, the law governing use of lethal force in defense of self or others is well developed and relatively uniform. Americans have reached consensus on the law of self-defense; it is our right. We are now discussing only the right to carry the means for effective self-defense. The Supreme Court, in the unanimous Caetano v. Massachusetts opinion, declared: The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms . . . “.
The law of self-defense can be complicated—there are nuances from state to state. One is entitled to acquittal based on self-defense only if the jury is persuaded that the defendant cleared each of about seven “flaming hoops” of criteria before resorting to lethal force. Miss just one of these, and the jury will be directed to consider a felony, or at minimum, a misdemeanor such as brandishing.
The District of Columbia requires a passing score on a written test covering its laws of self-defense before it will issue a carry permit. Is that requirement good public policy? Gun owners respond that for no other right—e.g., to speak, publish, refuse consent to be searched or interrogated—must a citizen pass a test to exercise a Constitutional right. But what, exactly, is the “right” to carry a concealed weapon?
The jurisprudence on the right to bear arms is not completely developed. (A synopsis: Prior to McDonald v. City of Chicago, it seemed that there might be no right to carry that the Supreme Court would enforce under the Second Amendment. Barron v. Baltimore in 1833 limited the applicability of the Bill of Rights to the states. The Fourteenth Amendment attempted to apply the “privileges and immunities of citizens” to freedmen but its impact was short-lived. The “Slaughterhouse Cases” of 1872 further reduced the force of the Bill of Rights on the states.) Justice Scalia commented in DC v. Heller: “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.”
The founding generation, in ratifying the Second Amendment, did not express any convictions on concealed versus open carry. Did the “right” to “bear” arms mean: openly, concealed, either, or both? Unless scholars discover the Founders’ intentions on that question, could we imagine a truce concerning one narrow point? That is, indulging each state the power to regulate concealed carry with a shall-issue law, without resolving their power to regulate open carry.
Could gun owners accept state concealed carry shall-issue permitting? In turn, could gun controllers concede that each state shall issue a concealed carry permit to any citizen who passes both:
1. A background check for criminal or mental-health prohibition, and,
8. A test on the law of self-defense?
In Pennsylvania, I need only pass a background check (and pay $21 every 5 years) to carry concealed. Pennsylvania is bounded by New York and Delaware, which will not entertain my applications for their permits from any non-resident. Pennsylvania is also bordered by New Jersey and Maryland, which would deny my permit application for want of “need” (I’m not employed in the security industry). Are Pennsylvanians unworthy to carry concealed in these neighboring states? Shouldn’t it be sufficient to pass a test regarding a state’s laws to qualify for its carry permit?
A test on law of self-defense should ensure that gun carriers know the legal standards before resorting to violence. Over time, this might promote better decorum across the population generally. If you have any desire to carry a gun—even if just to preserve your lifetime right to do so—you had better learn to behave yourself. If states like New York, New Jersey, Delaware and Maryland adopted such laws, others might consider adding law of self-defense tests to their permit programs as well. Passing such a test might become as accepted as driver’s license tests are. These models might spread from the may-issue states into the other 39 shall-issue states. (Vermont has no permitting law, requiring just proof of being 16 years of age.)
Suggesting tests on the laws of self-defense is not to disparage requirements for training or marksmanship. These merit consideration in their own right. The point is to explore: What, if anything, is a legitimate prerequisite to gun-carry with due respect for public safety? Certainly, it is not fees, in-state residency, occupation, political patronage, wealth or celebrity. Above all, it is a thorough knowledge and sober respect for society’s laws governing the use of deadly force in self-defense.
Citizens will not sit for 51 separate tests of each state’s laws of self-defense. A Pennsylvania permit enjoys reciprocity in 31 other states under the current bilateral and unilateral recognition. Florida’s non-resident permit picks up 3 more states. Commonwealth residents would mostly be satisfied by permits from the 4 bordering states that won’t issue under their current “may-issue” regimes.
Learning about the law of self-defense should materially advance the informed and disciplined practice of gun carry across the nation. It could help to avoid the typical head-on confrontation between diehards on both sides. It could head off a National Reciprocity Act as well as Supreme Court decisions that could stifle states’ legitimate efforts to promote safe carry.
It is unlikely that any such proposal will gain traction. Some gun owners decry any regulation concerning keeping or bearing arms. That is a natural consequence of the polarization of debate over the debate over “infringement” on the right to bear arms. And gun control advocates are unlikely to take this bait. They want no gun carry by ordinary citizens under any circumstances. Their stance is that bearing arms must be reserved to men of means and their paid squires (oh—and judges, prosecutors, the police —active-duty or retired, and military). Each side is shooting for victory in battle inside the D.C. beltway.
Blaming either side for the stand-off serves no purpose. Which side could take the initiative? Gun-owners are a minority in the may-issue states, so legislators ignore their complaints. Only the gun-controllers have entré to these lawmakers. Are advocates for “public safety” at all willing to negotiate actual common sense prerequisites for firearm carry?
—’MarkPA’ is trained in economics, a life-long gun owner, NRA Instructor and Massad Ayoob graduate. He is inspired by our inalienable rights to “life, liberty and the pursuit of happiness” and holds that having the means to defend oneself and one’s community are vital to securing them.