Concealed Carry 2003

The Colorado Freedom Report:  A libertarian journal of politics and culture.

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Concealed Carry 2003

by Ari Armstrong, January 12, 2002

In 1999, the Colorado legislature was close to passing state-wide concealed-carry legislation. Then two deranged students went on a murder spree at Columbine, and Republican legislators pulled their CCW bill, even though its only effect on schools would have been to make them safer.

Now, four years later, the legislature is poised to consider similar legislation. Governor Bill Owens, who led the charge to impose more Brady gun registrations on peaceable citizens through Amendment 22, has demanded that any CCW bill protect criminals in government schools by prohibiting the carry of defensive guns there. Thus, Colorado's children will be more prone to attacks by mass murderers and terrorists. Nevertheless, because Owens threatened to veto legislation that protects kids, many legislators may want to pass a bill that retains the prohibition.

Ken Chlouber, a Republican state senator from Leadville, has offered legislation (SB-24) expected to be acceptable to Owens that requires the sheriff to issue a permit to most law-abiding citizens who go through a background check and offer fingerprints. The bill requires training and a fee, though it also allows for emergency issuance.

Senator Doug Lamborn's bill (SB-63), which is sponsored on the House side by David Schultheis, is considerably shorter, at 12 pages instead of Chlouber's 30. It requires a background check but not fingerprints. It does not require training or prohibit carry in schools. Both bills may be downloaded at http://www.state.co.us/gov_dir/stateleg.html.

The differences between the bills reflect the clash between the NRA-affiliated Colorado State Shooting Association and the harder-lined Gun Owners of America affiliate, Rocky Mountain Gun Owners. Interestingly, the traditionally go-along-get-along Pro-Second Amendment Committee of Grand Junction is balking at the idea of giving up Mesa County's strong permit system in exchange for a watered-down state-wide system.

Victim-disarmament advocates brought flowers to the state capitol January 8, the opening day of the session, which is appropriate as more people will end up murdered or hospitalized if the anti-gun lobby is successful at preventing people from defending themselves.

Julia Martinez did an adequate job covering the issue for the Denver Post January 9. Unfortunately, she doesn't mention the core reason to pass concealed carry legislation: it is proven to reduce violent crime in other states with liberalized carry laws, as John Lott meticulously demonstrates in More Guns Less Crime (2nd Edition). However, the omission is largely the fault of her sources for failing to emphasize the point.

Martinez makes another major error by reporting: "[Dr. Eric] Sigel cited statistics that indicate guns are the second leading cause of teen death after motor vehicle accidents." But how is concealed carry -- a program limited to those 21 and over -- related to teen deaths? Martinez doesn't bother to raise the question. Liberalized concealed carry keeps teens safer in two ways. First, responsible adults are better able to protect the teens in their care from violent criminals. Second, a legally-concealed handgun is necessarily unavailable to others.

Martinez also fails to note the majority of teen deaths related to guns are suicides. But in Armed, Don Kates notes, "[T]hough the U.S. suicide rate actually exceeds its homicide rate, European suicide rates are still much higher. These much higher suicide rates further confirm that the decisive factors in the social harms associated with guns are culture and other issues more fundamental than the mere availability of some particular kind of weaponry" (59). Gary Kleck adds, "If denied guns, some or all of this group [of suicidal persons] would substitute other methods and kill themselves anyway" (180). But again, if anything concealed-carry legislation would make guns less available to teens.

Almost all the remaining deaths are homicides of older teens involved in gangs or other criminal activity. If Dr. Sigel cared about preventing teen deaths rather than promoting his politically-correct agenda, he would advocate the repeal of drug prohibition, which demonstrably and significantly increases the U.S. homicide rate (see http://econ.bu.edu/miron/.) Apparently, discussing the real causes of violence is beyond the scope of popular journalism in Denver.

John Sanko also skews the facts in his article for the Rocky Mountain News. He quotes Ted Pascoe, executive director for Physicians for Social Responsibility, "This is a recipe for disaster that will only lead to more gun deaths," but he fails to note such chicken-little predictions are disproved by the passage of similar laws in most other states. Instead, the evidence overwhelming points to the opposite conclusion: that liberalized carry laws deter violent crime. Again, the defenders of CCW should have given Sanko quotes along these lines, but Sanko also has a responsibility to research the facts.

Sanko goes out of his way to cite statistics from the anti-gun lobby. "The American Journal of Preventative Medicine reported that in 1997, gun violence resulted in $802 million for hospital care alone, [Million Mommer Barbara Laing] said." But liberalized carry laws reduce the amount of hospital care needed by law-abiding citizens by deterring crime. Laing too would quit the Million Moms and advocate for the repeal of drug prohibition if she actually wanted to improve public safety. (Obviously other factors impact inner-city violence, but prohibition is a major one.)

Sanko also reports, "Jennifer Corrigan, public policy director for the Colorado Coalition Against Domestic Violence, said, 'Domestic violence and guns are a lethal combination.' For every woman who used a handgun to kill an intimate partner in self-defense, '83 women were murdered by an intimate partner with a handgun,' she said."

However, as is the case with suicides, the perpetrators of domestic violence can easily kill in other ways, especially given the average male is physically larger than the average female. When a violent man turns a gun on a woman and shoots her, he means to kill her. On the other hand, when a woman uses a gun in self-defense, she generally does not mean to kill the attacker. Thus, often a gun is used in self-defense without even harming the attacker, because he flees with the mere brandishment of the firearm. If a woman fires a shot in self-defense, she is less likely to inflict a fatal wound and more likely to call for medical help. Thus, Corrigan's comparison is meaningless.

The interesting question is, how will concealed carry impact the rate of domestic violence? One wonders why neither Corrigan nor Sanko bother to ask this important question. The only plausible impact of liberalized carry legislation will be to make women safer. Concealed carry is most helpful to women who leave violent men and fear being stalked. On the other hand, concealed carry will in no way assist violent men in their attacks. Obviously, criminals cannot legally carry guns anyway.

If we're concerned about women living with violent men, then clearly the core problem has nothing to do with guns. It is unfortunate that Corrigan draws attention away from the real problems of domestic violence by focusing on a basically unrelated issue. Concealed carry legislation has no impact on domestic violence within the home. What we need are programs to help people move away from violent spouses, not programs to disarm the potential victims once they leave.

Another problem with Sanko's story is that the headline is biased. (That's probably not Sanko's fault, as somebody else probably wrote the headline.) The headline reads: "Both sides renew fight over guns: As activists gather, lawmakers push to weaken local control." But the point of CCW legislation is not to "weaken local control" -- the point is to give citizens a greater ability to defend themselves from attackers. Imagine a similarly worded subhead had Sanko written about the Fourteenth Amendment in 1868.

This does raise an important issue (though neither Sanko nor Martinez pursue it in their stories): is "local control" the key issue or even important in the debate? The obvious answer would seem to be no: cities and counties are creations of the state government and subject to the control of the state legislature. But just because CCW is legally permissible doesn't mean it's a good idea. Perhaps the state should defer to local governments on the matter, as is the case under current state law.

The state legislature should apply a two-pronged test. If it is determined that Colorado citizens have a legal right to carry concealed, then it should definitely prevent local authorities from violating this right. If it is determined citizens would benefit from the reform regardless of geographic region within the state, the legislature has strong reason for setting the policy.

That concealed carry benefits all citizens (except would-be criminals) is abundantly demonstrated. Against the extensive data of John Lott and other researchers, the opponents of concealed carry legislation invoke logical fallacies. As we have seen in the articles of Sanko and Martinez, members of the anti-gun lobby tend to argue along the following lines: "Some people hurt themselves or others with guns; therefore concealed carry laws should not be liberalized." The conclusion obviously does not follow.

I understand the majority of Coloradans state-wide favor liberalized concealed carry, even though Denver residents do not (http://www.ciruli.com/topstories/gunsuburbs.htm). However, against a mere preference against a liberalized carry law or an emotional discomfort with it, stands the mortal safety of the minority of Denver residents who wish to carry concealed and may not do so under local practices. Lott found liberalized carry laws reduce violent crime the most in high-density urban areas (where crime is currently highest). In addition, while the ability to carry a concealed handgun brings immediate and substantial benefits to those most at risk of victimization, the practice also benefits the community at large by deterring crime throughout the area. (Criminals aren't sure who is carrying a concealed defensive gun.)

Thus, even if no fundamental legal right to carry concealed guns is recognized, purely as a policy matter determined by cost-benefit analysis, the state legislature is justified in passing a state-wide, liberal concealed carry law.

As far as the legislature is concerned, then, the matter of fundamental rights need not be considered. However, I am going to push the argument and claim Colorado citizens indeed have a fundamental, inalienable right to carry concealed handguns (and other defensive weapons).

Of course, property rights trump. Property owners have the right to determine policies for their own property. If I'm correct that people have a fundamental right to carry concealed weapons, then that would imply the state may not prohibit private property owners from allowing the carry of concealed weapons, on their property.

The thorny problem, though, is what happens on government-owned property. One reason libertarians don't like "private-public partnerships" is precisely that property rights are not well-defined. Do "the people" own the property, or do specific politicians own it, and how are we to decide? In Colorado, the government owns most of the schools, almost all of the roads, and many of the sidewalks. It is impossible to travel very far (by land) without crossing government-owned property. It is such property that gives rise to the difficulties surrounding concealed carry.

However, the fact that we retain our rights on government property is pretty well established. The government cannot prohibit free speech wherever it owns property. It may, however, impose "reasonable" restrictions on behavior pertaining to rights. For instance, city governments may issue permits for rallies in city-owned parks.

Unlike a rally or demonstration, carrying a concealed weapon does not interfere with others' use of the property. Thus, offhand it's difficult to see how the government could restrict the carry of concealed weapons, if the practice is considered a right. However, the fact that the government issues permits for, say, rallies, indicates the government might also be able to issue permits for concealed carry, even if it is considered a right.

Colorado's Constitution seems to immediately defeat my suggestion that concealed carry is a legal right (while it also calls into question local ordinances restricting the possession of guns at home or on the hip). It states, "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."

Given the wording of the Constitution, the legislature is authorized to make whatever rules it wishes concerning CCW. It could simply choose to pass no law concerning the matter, implying the practice is legal (unless a locality prohibited it). Or the legislature could ban CCW outright. The legislature could legalize it absolutely (for all non-criminal intents), or it could legalize it in some cases and under certain conditions, as is now the case. The proposed reforms are fairly minor in the scope of things.

Nevertheless, I want to outline a case in favor of regarding concealed carry as a right, regardless of the wording of the state Constitution. I have no intention of providing a complete, sufficiently detailed case here, as that would require a lengthy and intricate essay, but I do want to frame the basic argument.

The Second Amendment states, "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." I am satisfied by the account of Stephen P. Halbrook in That Every Man Be Armed the article establishes an individual right. (Many other sources confirm Halbrook's view, but that's the work I'll cite here.) Halbrook describes the view that the Second Amendment automatically supersedes state law, but the Fourteenth Amendment explicitly does. In addition, the Ninth Amendment states, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." I subscribe to Randy Barnett's broad interpretation of this article.

Halbrook notes that in the early 1800s, while state courts consistently upheld an individual right to bear arms, they disagreed about whether concealed carry is included in that right. Halbrook notes a Kentucky court found "wearing concealed weapons had been considered a legitimate practice when the [state] constitutional provision was adopted..." (93) One Tennessee court found citizens may "keep and bear arms for their defense, without any qualification whatever as to their kind or nature..." (94), whereas another decision found individuals had the right to keep "ordinary military weapons" (in Halbrook's words). In an 1842 Arkansas case, two of three judges found a "defendant had borne a concealed weapon unsuitable for militia use, [so] the conviction [based on a law prohibiting concealed carry] was upheld" (95).

In 1903, the Supreme Court of Vermont tossed out a prohibition on concealed carry, finding "a person... may carry a dangerous or deadly weapon, openly or concealed, unless he does it with the intent or avowed purpose of injuring another..." (180) A century later, Vermont remains the only state in the union in which concealed carry without a permit is legal. (Vermont is also a low-crime state.)

On the other hand, in 1902 the Supreme Court of Idaho refers to "the carrying of weapons concealed" as "a pernicious practice" (180). An 1897 U.S. Supreme Court decision states, "[T]he right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons..." (163) In 1875, the Texas Supreme Court referred to guns "appropriate for open and manly use in self-defense..." (179).

I'm not aware of a comprehensive historical survey concerning concealed carry. For now, then, I'll just reconstruct the likely course of history. When the constitutions of the United States and the early states were adopted, concealed carry was not considered to be a problem. A few decades later, state governments began to prohibit concealed carry, and many state courts allowed those laws to stand. Later states explicitly excepted concealed carry from protection. The U.S. Supreme Court came to hold the Second Amendment does not protect a right to carry concealed guns.

Presumably, the general wisdom was that upstanding citizens, if they carried a gun, did so openly, whereas people who wanted to sneak up on you or evade the law hid their knives and guns. And today that's probably still true to some degree. Criminals already carry concealed handguns and other weapons throughout Colorado -- without a legal permit, of course. However, it's also obviously true that a lot of decent, upstanding citizens want to and do carry concealed guns legally and responsibly.

It seems I will have a hard time making a case for a legal right to carry concealed handguns. U.S. legal interpretation does not support the practice; certainly Colorado's constitution does not.

But my argument is fairly simple. Our rights are not granted by government; they are merely recognized by (proper) government. The Ninth Amendment clearly recognizes this. Self-defense is a fundamental human right. Carrying a gun concealed is an important means of self-defense. Carrying a handgun concealed confers two main additional benefits. First, criminals have a much more difficult time stealing concealed guns. Criminals usually don't even know who has a concealed gun. Even if a criminal knows a specific person is packing concealed gun, it's harder for the criminal to grab than is a gun in an open holster. Second, in a situation of potential mass murder or even armed robbery, the criminal will look to murder the person with a visible weapon first. A less important concern is that a gun worn openly on the hip is easily concealed by a jacket, thus leading to potentially arbitrary enforcement. Also, some people find it more convenient to carry a gun concealed in a purse or other bag rather than on the hip.

Barnett speaks of a "presumption of liberty." The individual gains significant benefits from carrying a handgun concealed without imposing any costs on any other party. (The person carrying concealed actually improves the safety of the community at large.) That is sufficient to establish a right.

My arguments, thus far, have not defeated the ability of the state to issue permits for concealed carry. The argument in favor of such a permit system is that upstanding citizens are not much inconvenienced by getting a permit, whereas criminals who won't get a permit will thereby face additional legal hurdles. Basically, a permit system (arguably) allows police to arrest criminals for an indirect offense.

But I think a permit system does impose serious costs on the law-abiding citizen without doing much to impede criminals. Specifically, a permit system necessarily registers gun owners with the state. That is inherently a loss of privacy, and it creates the risk of the state eventually taking action against the permit holders. Thus, I believe each individual has a right to carry a gun or other small weapon, open or concealed, for defensive purposes, without a permit.

Of course, our natural rights -- the sphere of autonomy others should respect -- have never been fully recognized by those in power. Both the proposed bills extend the recognition of the right to carry a concealed handgun, but both also require state registration. I sympathize with those who oppose Chlouber's bill on the grounds it would replace stronger county-wide permit systems. I also sympathize with those who live in more restrictive counties who would unequivocally benefit by passage of either bill. Self-defense advocates shouldn't support state-wide concealed carry simply because the anti-gun lobby opposes it, of course. It's important to keep in mind that every proposal now on the table involves some compromise of our rights. The flip side is that a compromised right is better than no right at all.

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