The Concealed Carry Quarrel
by Ari Armstrong, March 1999
Brown and I got to chatting, and at some point he noted that his group is the only "purist, no-compromise" gun rights group in Colorado. I assured him that he was mistaken, as the Pro Second Amendment Committee of Grand Junction is equally committed to protecting gun rights.
Little did I know at the time that I was putting myself in the middle of a battle over ideology and personality. On one side is Brown, on the other my father, Linn Armstrong, of the Grand Junction organization. The conflict: how best to write a law allowing more permits for concealed guns in Colorado.
My dad supports Senator Ken Chlouber's SB-084, now inactive, which would require firearms training for a permit. Representative Doug Dean's similar HB-1316 passed a House committee vote February 25 and may breathe new life into the Senate version. Brown supports Marilyn Musgrave's SB-156, passed by the Senate February 19, that requires local law officers to issue permits on demand, though usually after a background check.
In Linn Armstrong's opinion, Musgrave's bill suffers from two defects. First, it will not be recognized by other states, as Chlouber's likely would be. Second, the lack of mandatory training will increase the risks of gun misuse, which might cause a backlash from the gun-control crowd.
But Brown sees the devil in the mandatory training. An RMGO T-shirt I picked up at the Expo reads, "It [gun ownership]'s a right, not a privilege!" Indeed it is. In his opinion the National Rifle Association and groups friendly to it push for mandatory training in part because they oversee -- and profit from -- much of this training.
The dispute about concealed carry is fueled by personality clashes. Apparently there was once a misunderstanding between Brown and members of other gun groups about the ownership of a mailing list of activists. Also, like many libertarians, both Brown and Armstrong seem to run a bit on the stubborn side. (That's Linn Armstrong, of course, not me. I'm not a bit stubborn, and don't think you can convince me otherwise.)
Brown is quick to overlook arguments that run counter to his beliefs. He's self-consciously a defender of principle, yet he looks past the pesky business of background searches in Musgrave's bill even as he blasts Chlouber's bill for its mandatory training. Hopefully we can all agree there's room for intelligent disagreement on this issue. The easy part is thinking in terms of clear, consistent principles. The hard part is applying the principles to particular cases, which are often complex, subtle, and ambiguous.
The Problem of Background Checks
After weighing the arguments, I've reached an opinion about the tricky matter of concealed carry laws that should make both parties equally happy (which is to say, unhappy). I disapprove of both bills.
Both bills require gun owners who apply for concealed carry permits to reveal information about their gun ownership to the government. Thus, even if one of the concealed carry bills becomes law, it would be a mistake for anyone to apply for a permit under it. Once the government places you on a list of gun owners, you're pegged for life. This could cause problems in two ways. First, if more guns are made illegal, such lists could be used to crack down on gun owners. Second, if a US President ever declares martial law, it is conceivable that the government could try to confiscate all guns. I don't own guns, God knows. I especially don't own a 9-mm pistol or a .22 rifle. But if I did own weapons such as these, the government is the last organization I'd want to know about it. (I don't suppose the editor of a libertarian journal can keep his name off the government's lists, anyway.)
To be sure, Musgrave's bill does promise that information won't be abused. Its summary "prohibits a sheriff or police chief from requiring an applicant to provide any information concerning weapons owned by the person." But who cares if the government knows which guns you own? The government shouldn't know whether you own guns at all. The scarier portion of the bill reads:
The Colorado bureau of investigation, upon request by a chief of police or sheriff, shall conduct a criminal history check TO DETERMINE WHETHER AN APPLICANT IS ELIGIBLE TO PURCHASE A FIREARM PURSUANT TO STATE AND FEDERAL LAWS. (Capitals in original to indicate the text added by SB-156. The text of current bills can be found at http://www.state.co.us/gov_dir/stateleg.html.)
The Rocky Mountain News claims that "no background check is required" by the bill (February 20,1999, page 5A), but this is misleading. The bill also says "that a sheriff or police chief shall not be liable for any damages resulting from the granting of a permit issued in good faith to comply with the act." In order to make a good faith effort to know applicants are qualified, sheriffs will need to run practically every name by the CBI. So, before you apply for a concealed carry permit, ask yourself the question: Do I want to put myself on a list of gun owners the Federal government can access?
Are Concealed Carry Laws Constitutional?
Another problem with the concealed carry bills is their seeming affront to the Colorado Constitution. Article 2, Section 13 reads:
The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. (http://i2i.org/SuptDocs/ColoCon/iscolocn.htm)
The first thing I noticed about this provision is how confusing it is. Senator Pat Pascoe claims this is a "specific prohibition of concealed weapons" (Rocky Mountain News, February 14, 1999, page 1B). However, one could interpret the provision to mean that, while the Constitution itself doesn't justify concealed carry, additional legislation may do so. Or, perhaps by passing additional legislation which allowed concealed carry, we would be "construing" the Constitution to "justify" this, thus breaking the higher law. (David Bryant tells me the Colorado Supreme Court has consistently ruled that the General Assembly may legislate in this area, but the reasons for the Court's conclusion are hardly obvious to me.)
As if the Colorado Constitution didn't raise enough questions by itself, there's also the matter of whether the Colorado law attempts to override the Federal Constitution, thus invalidating itself. If the Federal Constitution doesn't prohibit concealed carry, can Colorado law do so?
I suppose these matters are academic, as most leaders in government invoke Constitutional authority only when convenient. The irony would be if the gun rights crowd were as quick to dismiss the line in the Colorado Constitution as the gun control groups are to dismiss the Second Amendment to the Federal Constitution.
Alternative Ways to Reform Concealed Carry
I favor simpler changes to the concealed carry laws than what's offered by this year's spate of bills. Under current law, concealing a weapon without a permit carries a class 2 misdemeanor charge (18-12-105(1)). A class 2 misdemeanor carries with it a penalty of three to twelve months imprisonment, and/or a $250 to $1,000 fine (18-1-106). If a concealed carry violation were merely dropped to a class 3 misdemeanor it would go a long way toward taking the grief out of self-defense. The class 3 penalty is zero to six months imprisonment, and/or a $50 to $750 fine. A lower penalty yet would be better if legally viable.
Further, sub-section (2) of CRS 18-12-105 discusses conditions that qualify as an "affirmative defense" against the charge of concealed carry. If more "affirmative defenses" were added to the law, more people could carry without a permit. Several additions could be made to this section, such as:
18-12-105(2) would be even better if it were changed along the lines suggested in Musgrave's bill. In her SB-156, the phrase, "it shall be an affirmative defense," is changed to, "it shall not be an offense." (The Colorado Revised Statutes are available on-line at http://www.state.co.us/gov_dir/stateleg.html.)
Note that the changes I suggest do not involve permits, background checks, or mandatory training.
The Right to Bear Arms and the Right to Regulate Arms
But on to more visceral concerns. What's the point of carrying a concealed weapon in the first place? Presumably, it's to enable the carrier to shoot would-be criminals. A concealed gun is only effective if readily accessible. What's wrong with just carrying a gun on the belt out in the open, then? A visible gun would do a lot more to scare away criminals than the mere potential (from the criminal's point of view) of a concealed gun. As my dad pointed out, back when the Colorado Constitution was written, it wasn't unusual to wear guns, and usually only criminals tried to conceal them.
I think our culture would be healthier and safer if people returned to the practice of carrying visible guns. However, just as property owners have the right to ban guns, they also have the right to permit concealed ones. The State has no business dictating the use of guns on private property, which includes such so-called "public" facilities as private malls, private movie theaters, etc.
The problem of government property remains. Doesn't the government have the right to regulate the land it "owns?" The political process of necessity must govern political lands. As a practical matter, I think the government should permit at least visible weapons on its lands, and perhaps concealed ones as well. Certainly concealed weapons should be allowed in vehicles on government roads. When driving a car, it's impractical to keep a gun accessible and visible, and it's pointless to keep a gun locked up in the trunk. A gun can be safely transported, say, in the glove-box, where it is also easy to get to.
The central problem is that the government owns vast tracts of land in the first place. If the roads were private, the issue of concealed carry on roads would not have to be political. The libertarian solution to concealed carry is to privatize all land and let individual property owners set the conditions of use. My guess is that visible carry would become the norm.
Preventing Irresponsibility with Guns
With talk of an armed citizenry, visions of people blowing each other away dance in the heads of those who are ignorant concerning gun ownership. In the view of the anti-gunners, as soon as people see a gun, they froth at the mouth and lose their minds. This is the same mentality that says people cannot properly educate their children, save for retirement, contribute to charity, and so forth without help from the government. In other words, people are children, and the State is the parent.
To be sure, some people shouldn't have guns at all because they're stupid and irresponsible. I know a number of people who would make me happy if they never, ever touched a gun. However, most gun owners are completely responsible. They treat their firearms with deep respect. My parents lectured me for hours on end about the rules of gun safety. Politicians shouldn't use the thoughtless behavior of a few as an excuse to restrict the rights of everyone.
Restricting the rights of all because of the misdeeds of a few is morally wrong and damaging to the individual. Should the State restrict the rights of the press, because some report irresponsibly? Constructing policy around the "average" person rather than around individuals is always unfair. Similarly, I shouldn't have my driving restricted, simply because Colorado House Speaker Russell George chose to drive with a blood alcohol content of 0.21%. The government should penalize only those who misuse guns.
The right to bear arms is essential if people hope to keep crime and the tyranny of the State at bay. In a libertarian world, the only gun control would be enacted by private parties on their own land. Irresponsibility with guns would be punished swiftly by the courts, deterring most problems. Unfortunately, the proposed concealed carry laws don't show much promise in advancing this libertarian ideal, and they may threaten it.