April 15, 2020

11A115 - Conceal Carry

AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
AUGUST 8-9, 2011

STANDING COMMITTEE ON GUN VIOLENCE
COMMISSION ON DOMESTIC VIOLENCE
CRIMINAL JUSTICE SECTION


RESOLUTION

RESOLVED, That the American Bar Association supports federal, state, territorial and local laws that give law enforcement or other appropriate authorities broad discretion, in accordance with specified state standards and subject to judicial review, to determine whether a permit or license to engage in concealed carry should be issued in jurisdictions that allow the carrying of concealed weapons, and opposes laws that limit such discretion by mandating the issuance of a concealed carry permit or license to persons simply because they satisfy minimum prescribed requirements.

FURTHER RESOLVED, That the American Bar Association opposes federal legislation that would force states to recognize permits or licenses to carry concealed weapons issued in other states.

REPORT

Gun violence continues at epidemic levels in the United States. In 2007, the most recent year for which statistics are available, over 31,000 Americans died from firearm-related injuries – an average of more than 85 deaths each day – and nearly 70,000 others were treated for non-fatal gunshot wounds. Guns were used to commit over 385,000 crimes in the U.S. in 2007, and nearly 70% of all murders that year were committed with a firearm.

The carrying of loaded, concealed firearms in public increases the risk of gun-related deaths and injuries. The danger posed by criminals who engage in this conduct is obvious. However, public safety is threatened even where persons carry concealed guns pursuant to a state permit or license. Such carrying increases the chance that everyday disputes will escalate into deadly encounters, and the risk that accidental shootings will occur where large numbers of people are gathered. The concealed carrying of firearms also places law enforcement officers at heightened risk of gun violence.

States have long recognized the dangers associated with the carrying of hidden, loaded weapons. State legislatures first began to adopt laws prohibiting concealed carry in the early 1800s. Then, in the first few decades of the 20th Century, states began enacting laws granting law enforcement broad discretion to issue permits to carry concealed weapons (CCW permits). These “may issue” laws allow the issuing official to grant or deny a permit application based on various statutory factors, such as whether the applicant has a justifiable need to carry a concealed firearm.

Beginning in the late 1980s, however, state legislatures began to weaken concealed carry laws by removing law enforcement discretion from the permitting process. These “shall issue” laws force law enforcement to issue permits to anyone who meets minimal statutory requirements (e.g., that the applicant is over the age of twenty-one and has not been convicted of a felony), making permits dangerously easy to acquire.

Legislatures nationwide continue to adopt lax concealed carry laws, despite evidence demonstrating that they have been associated with increases in violent crime. One public opinion survey showed that 57% of Americans feel less safe knowing people can carry loaded, concealed guns in public and an almost identical majority (56%) opposes allowing concealed carry at all.

I. Federal and State Laws Governing the Carrying of Concealed Firearms

Current federal and state laws make it dangerously easy for people to carry or possess loaded, hidden firearm in public. Federal law is nearly silent on the issue, and state laws vary tremendously. Two states (Illinois and Wisconsin) and the District of Columbia prohibit the carrying of concealed firearms entirely, while four states (Alaska, Arizona, Wyoming and Vermont) allow the carrying of concealed firearms without a permit.

Ten states are “may issue” states, granting law enforcement officials discretion in the permitting process, and thirty-four states are “shall issue” states, depriving law enforcement officials of such discretion.

II. Law Enforcement Should Be Given Discretion Regarding the Issuance of Concealed Carry Permits

To minimize the threat to public safety created by the carrying of loaded, concealed firearms in public (in those states that allow concealed carry) law enforcement should be allowed broad discretion to decide whether CCW permits should be issued. Local law enforcement agencies are in the best position to make determinations regarding applications for permits because they understand the potential impact the issuance of such permits could have on the community. They are also the most likely to be familiar with the applicant’s history and reputation and therefore to know, for example, whether the applicant has been the focus of domestic violence complaints or convicted of misdemeanors that would not disqualify him or her from possession of a gun under federal or state law.

Law enforcement officers have a unique interest in seeking to limit the carrying of loaded, hidden guns in public, since they are at particular risk for being victimized by concealed firearms. Law enforcement agencies should not be forced to issue CCW permits to persons who have not been carefully and individually evaluated.

The horrific mass shooting in Tucson on January 8 of this year, in which six were slain and thirteen wounded, including Rep. Gabrielle Giffords (D-Ariz.), illustrates the importance of law enforcement discretion in evaluating those who wish to carry concealed weapons. Some years ago, Arizona enacted a “shall issue” concealed weapons law, and more recently the state eliminated all permitting requirements for carrying concealed. This meant that Jared Loughner, the suspect in the Tucson shooting, was, according to Arizona law, a legal carrier of a concealed weapon until the moment he pulled the trigger and began his rampage. Even if Tucson police had become aware of Loughner’s previous threatening behavior, which was sufficient to cause him to be expelled from a local community college, the police would have been powerless under Arizona law to prevent him from carrying a concealed weapon.

III. The Second Amendment Does Not Encompass a Right to Carry a Loaded, Concealed Firearm in Public

Opponents of strong concealed carry laws argue that the Second Amendment guarantees a right to carry hidden, loaded guns in public. This argument has no legal basis.

In District of Columbia v. Heller, 128 S. Ct. 2783 (U.S. 2008), the United States Supreme Court held that the Second Amendment guarantees law-abiding, responsible citizens the right to possess a handgun in the home for self-defense. The Court emphasized that the right protected is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” After observing that the majority of 19th century courts to consider the question held that prohibitions on carrying concealed weapons were lawful, the Court identified a non-exhaustive list of presumptively valid laws, including those prohibiting firearm possession by convicted felons and by others in “sensitive places,” such as schools and government buildings.

Because laws governing the carrying of concealed weapons do not affect an individual’s right to possess a handgun “in defense of hearth and home” – the only Second Amendment right announced in Heller – those laws do not conflict with the Second Amendment.

Since Heller, a significant number of courts have held, in a variety of contexts that the Second Amendment right does not extend beyond the home. Several courts have specifically rejected Second Amendment challenges to discretionary concealed carrying systems, including:
Williams v. State, 2011 Md. LEXIS 1 (Jan. 5, 2011). The Maryland Court of Appeals (the state’s highest court) upheld the state’s discretionary permitting scheme, rejecting the defendant’s argument that the Second Amendment establishes a general “right of persons to keep and bear arms for lawful purposes.” The court stated that “Heller and McDonald emphasize that the Second Amendment is applicable to statutory prohibitions against home possession.”

Young v. Hawaii, 2009 U.S. Dist. LEXIS 28387, *13 (D. Haw. Apr. 1, 2009), reconsideration denied by Young v. Hawaii, 2009 U.S. Dist. LEXIS 62707 (D. Haw. July 2, 2009). The court determined that Heller was inapplicable to the plaintiff’s suit because Hawaii’s discretionary permitting statute “pertains only to the carrying of weapons on one’s person and does not constitute a complete ban to the carrying of weapons or pertain to possessing weapons in one’s home.”

Matter of Bastiani, 881 N.Y.S.2d 591, 593-94 (N.Y. Cty. Ct. 2008). The court denied petitioner’s request to expand her firearms permit to allow carrying outside of the home, stating that, “In New York State the burden of establishing proper cause for the issuance of a full carry permit, as noted above, is upon the applicant to establish ‘a special need for self-protection distinguishable from that of the general community or persons engaged in the same profession.’ Such is not inconsistent with the holding of Heller.”

Dorr v. Weber, 2010 U.S. Dist. LEXIS 48950, *24 (N.D. Iowa May 18, 2010). The court held that “there was no violation of the Second Amendment” in the denial of plaintiffs’ applications for concealed carry permits and that Heller did not establish a right to carry a concealed weapon.

In sum, the Second Amendment is not an obstacle to laws vesting law enforcement with discretion regarding the issuance of permits regulating the carrying of concealed, loaded firearms.


IV. No Evidence Supports the Claim that “Shall Issue” Laws Deter Crime

Proponents of “shall issue” laws argue that such laws lead to decreases in crime. These claims are based on the controversial and widely-discredited research of economist John Lott, summarized in Lott’s 1998 book More Guns, Less Crime, which compared crime rates in 10 states that had adopted “shall issue” laws with those that had not. Lott’s research purportedly showed that “shall issue” laws were associated with a substantial decrease in certain types of violent crime.

Lott’s claims have been extensively criticized by more than a dozen reputable researchers. In addition to pointing out serious flaws in Lott’s statistical models, researchers have observed that even if Lott’s study found a superficial correlation between the enactment of permissive carrying laws and downward trends in crime, the study fails to show that these laws caused decreases in crime. Numerous variables could have an impact on a state’s crime rate, such as poverty, drug and alcohol use, gang activity and law enforcement resources. Lott’s research failed to take any of these variables into account.

The National Research Council of the National Academies undertook an in-depth analysis of Lott’s claims, and of subsequent research refuting those claims, in Firearms and Violence: A Critical Review (2005). That report concluded that “[Lott’s] initial model specification, when extended to new data, does not show evidence that passage of right-to-carry laws reduce crime.” Other studies examining the effects of “shall issue” laws in more states than examined by Lott, and over more years, have found that such laws are associated with increases, rather than decreases, in crime.

In addition, studies of those who have obtained CCW licenses in states with “shall issue” laws support the common sense conclusion that more carrying of loaded firearms makes society less safe. A Los Angeles Times analysis of Texas CCW holders, for example, found that between 1995 and 2000, more than 400 criminals – including rapists and armed robbers – had been issued CCW licenses under the state’s “shall issue” law.

The South Florida Sun-Sentinel found that those licensed to carry guns in the first half of 2006 in Florida (another “shall issue” state) included more than 1,400 individuals who had pleaded guilty or no contest to felonies, 216 individuals with outstanding warrants, 128 people with active domestic violence injunctions against them, and six registered sex offenders. An investigation by the Indianapolis Star regarding CCW permits in Indiana revealed similar problems with the state’s permitting system.

The Los Angeles Times analysis of Texas CCW holders found that “largest category of problem licensees involve[d] those who committed crimes after getting their state” licenses. Thousands of the 215,000 license holders in Texas were arrested for criminal behavior or found to be mentally unstable during that time period. Another study found that Texas CCW permit holders were arrested for weapons-related crimes at a rate 81% higher than that of the state’s general adult population.

More recent research found that “shall issue” CCW laws increase gun trafficking. A September 2010 report by Mayors Against Illegal Guns (a coalition of over 500 mayors that targets illegal guns nationwide) analyzed the impact of a variety of state laws on gun trafficking, concluding that guns flow from states with weak gun laws into states with stronger gun laws. With respect to concealed carry laws, the report found that states with laws that deprive law enforcement of discretion regarding the issuance of CCW permits are the source of crime guns recovered in other states at more than twice the rate of states that do grant law enforcement such discretion. The report noted that CCW permit holders in one state are often allowed, under reciprocity agreements with other states, to carry guns in those states, and are often exempt from laws designed to impede gun trafficking (such as one-gun-a-month laws, intended to prohibit individuals from buying guns in bulk and reselling them on the black market).


V. Congress Should Not Force States to Recognize Licenses to Carry Concealed Weapons Issued in Other States

Paragraph 2 of the ABA Resolution on Concealed Carry of Weapons takes a position against federal legislation that would force states to recognize permits or licenses to carry concealed weapons issued in other states. The ABA opposes such “concealed carry reciprocity” legislation because it would adversely impact public safety by generally weakening state standards for concealed carry of weapons. It also would undermine the authority of individual states to set strict standards for concealed carry by allowing the concealed carry laws of one state to override the standards of other states.

Under current federal law, each state determines whether to allow the concealed carry of handguns and other dangerous weapons within its borders, and under what circumstances. As noted above, only two states, Illinois and Wisconsin (along with the District of Columbia), completely ban the concealed carry of weapons, and only three states (Alaska, Vermont and Arizona) allow the concealed carry of weapons without a license. The remaining states have some form of permitting or licensing requirement for concealed carry, with widely varying standards for who can carry concealed, what training is required, and where concealed carry can legally occur.

Under current law, individual states can enter into “reciprocity agreements” with other states, allowing those with licenses from one state to carry concealed in the other state that is party to the agreement. However, such agreements involve two consenting states. No provision of federal law currently requires a state to recognize the validity of a concealed carry permit from another state.

Federal reciprocity legislation is objectionable for several reasons.

First, it would undermine the sovereign authority of each state to set strict standards for the concealed carry of weapons, an issue with a direct impact on public safety. Such legislation would undermine the laws of states that have chosen to enact and enforce strict standards limiting the concealed carry of deadly weapons by allowing persons licensed under less restrictive laws in other states to carry in derogation of the law in the state where the carrying occurs. For example, states like California and New York, which allow local police considerable discretion to deny concealed carry licenses even to persons without a serious criminal record if, for example, the applicant cannot demonstrate a sufficient need to carry concealed, would be forced to allow concealed carry within their borders by persons with licenses from states where the police have no such discretion.

Second, it would result in a general weakening of state standards for concealed carry, effectively reducing states to the “lowest common denominator” of the states with the weakest laws. As noted above, even under current state restrictions, concealed carry licenses have been issued to very dangerous individuals who have committed egregious crimes. The threat is exacerbated by laws in states like Florida allowing concealed carry permits to be granted to out-of-state residents, even though they have been denied carry licenses in their home states. For example, in 2010 a Pennsylvania man who had obtained a Florida carry permit after he was denied one by his home state, fatally shot an 18-year-old in Philadelphia.

Third, federal reciprocity legislation would force states to give preferential treatment to out-of-state residents over in-state residents. Federal concealed carry reciprocity would mean that, in states with restrictive standards for concealed carry, residents of those states must conform to those standards, while out-of-state residents do not, as long as they have a concealed carry license from their home state. Congress should not be in the business of creating such inequities in the issuance of concealed carry licenses.

For these reasons, the ABA opposes federal concealed carry reciprocity legislation.

Respectfully submitted,

Magistrate Judge Robert B. Collings, Chair
Standing Committee on Gun Violence
August 2011