Is a Concealed Carry Law Necessary?

In 2004, the State of Ohio became the thirty-seventh state to pass some form of concealed carry legislation, under which persons may carry concealed firearms.  Shortly after, William Michael, an attorney from Columbus published an article in the Akron Law Review.  His thesis is simple.  While some gun rights advocates endorse concealed carry legislation, this demonstrates how far we have come from the original intent of the Second Amendment.   “Given the Second Amendment to the United States Constitution, such legislation appears unnecessary since individuals have a constitutional right to carry firearms.”

Mr. Michael lays out a simple and logical argument in three steps.  After reciting a litany of positions contrary to the idea that every American has the right to own a firearm, the Columbus lawyer begins his own argument by examining the actual text of the Second Amendment.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The text itself suggests two fundamental questions.  (1) What is the right protected?  (2) Whose right is it?  Regarding the first question, a plain reading of the text indicates that right being protected is the “right to keep and bear Arms.”  Regarding the second question, the text indicates that it is specifically “the right of the people.”

As simple as it sounds, this is a critical starting place because it is not uncommon for legal scholars to claim that the right protected under the Second Amendment is a collective right that only belongs to “the Militia,” which moreover is given existence only after being organized by the State.  Thus, “who” is protected under the Second Amendment is only organized Militia, and in some authors’ legal analysis only those Militia that are organized by the State.

Michael offers several arguments in addition to the straightforward language of the Amendment itself.  First, the meaning of “the people” as individuals has never been questioned in the FIrst, Fourth, Ninth, or Tenth Amendments, so there is no reason to question it in the Second.  Thus, even though scholars and courts have argued that the Second Amendment protects only the rights of States or collective rights of certain groups, “collective rights are antithetical to the familiar notion of individual rights in the United States.  They very inclusion of the right to keep and bear arms in the Bill of Rights indicates that the framers of the Constitution considered it an individual right.”  The Bill of Rights is a clear listing of individual rights, and since the Second Amendment is included in this document, the phrase “the people” should be interpreted in a manner consistent with the rest of the document.  That is to say, if the understanding of “the people” in the First, Fourth, Ninth, and Tenth Amendments is individual Americans, then so too should the phrase be interpreted in the Second Amendment.

Of course, some will still adamantly argue that the inclusion of the clause “a well regulated Militia, being necessary to the security of a free State” is enough to mitigate the definition of “the people.”  Yet the whole tenor of the Bill of Rights, as well as similar grammatical structures found throughout the Constitution, dictates that we understand this clause not as a modifier to “the people” but rather to be an indication of why individuals have the right to keep and bear arms.

There are also contrary opinion of how to understand the phrase “a well regulated Militia.”  Jack Rakove (cited by Michael) asserts that “any reader of Article I, Section 8 [which empowers Congress to call forth the Militia to execute the laws of the Union, suppress Insurrections and repel Invasions] would find it hard to deny that the text there considers the militia not as an unorganized mass of the citizenry but as an institution subject to close legislative regulation” (emphasis added).  However, Michael levels two criticisms against this.  First, the clause suggests that the militia exists before being called to defend the country, and therefore individuals do not become a militia only when employed and organized by the country.  Second, Article I, Section 8 also gives Congress the power to “provide for organizing, arming, and disciplining, the Militia,” which indicates further that the Militia exists before organization, otherwise the power to organize and discipline it would be superfluous.  Finally, because the Tenth Amendment already delegates the power to maintain state militias (because is is expressly not delegated to the federal government), a reading of the Second Amendment as one that gives States the power to organize militias would be redundant and unnecessary.  Clearly something else must be going on the Second Amendment, which is precisely the individual right to keep and bear arms.

The second step in Michael’s argument is to examine the intent of the Framers of the Constitution.  Madison’s original version, which he proposed to be put in Article I, Section 9, read: “The right of the people to keep and bear arms shall not be infringed; a well-armed, and well regulated militia being the best security of a free country.”  The revision cycle that the Article went through demonstrates that the intent, which in its original wording clearly spells out an individual right, does not change with the reordering of the clauses.  The very fact that Madison wanted to place this in Section 9 is even more evidence, for this is one of the few places in the original Constitution that protects individual rights.  Further, the Senate rejected a proposal to add the phrase “for common defense” after “to keep and bear arms,” which demonstrates that the Senate did not want to narrow an individual’s right to keep and bear arms to only those situations that provide for the “common defense.”

The context in which the Constitution was written also demonstrates the Founders’ intention of maintaining an individual right to keep and bear arms.  They were quite skeptical of government’s potential to become tyrannical, and they believed that an armed citizenry would protect against such tyranny.  Perhaps the most entertaining line of the Michael article comes at the end of this section: “Daniel Polsby once asserted that no ambiguity at all surrounds the attitude of the constitutional generation concerning the right of the people to keep and bear arms.  To put the matter bluntly, the Founders of the United States were what we would nowadays call gun nuts.”

The final step for Mr. Michael is to examine the right to concealed carry as a right protected under the Second Amendment and therefore in no need of State legislation.  The argument boils down to the deliberate distinction between “keep” and “bear.”  To “keep” arms means to have passive, custodial possession of them, such as keeping them in the house.  To “bear,” however, implicates a more active conduct, which suggests the “active, exhibitory use of arms.”  Michael offers examples such as “he came bearing gifts.”  Thus, there are two rights being spelled out in the Second Amendment, the first being the right to essentially own firearms, and the second being the right to carry them, which Michael extends to concealed carry.

The author laments that much of the dialog and scholarship about the Second Amendment devolves into questioning authorial motives and a debate over the Constitution as a document that is “living” or one that is to be read in accordance with the original intent.  However, “such critiques reveal a weakness in the argument of those opposed to gun ownership – if the text and history of the Second Amendment supported their position, they would not resort to the living constitution argument.”

I will let Mr. Michael have the final word:

Concealed carry statutes appear to presuppose that individuals cannot carry concealed weapons but for the statutes. As described herein, such a presupposition may be inconsistent with the Second Amendment’s text. If it is, concealed carry statutes should be viewed as regulation of the preexisting, constitutional right to carry concealed weapons and, accordingly, should be subject to judicial scrutiny with the same level of vigor as any other statute regulating a constitutional right.