Bans on Concealed Carry, Revisited
To be sure, any discussion of open carry rights has a certain air of
unreality. In many places, carrying openly is likely to frighten many people,
and to lead to social ostracism as well as confrontations with the police.324
Most people are aware that many neighbors own guns, and even that many
people are licensed to carry concealed guns and many others carry them
illegally,325 but this abstract knowledge doesn’t cause much worry. But when
a gun is visible, it occupies people’s attention in a way that statistical realities
do not. This is likely to deter many people from carrying a gun.326
There is indeed an “open carry movement” of people who deliberately
wear guns openly, as a means of trying to normalize such behavior and of
making a statement in favor of gun possession.327 But this is like people who
wear T-shirts that say “I had an abortion.”328 A few people choose to disclose
such facts to make a political point. Yet most people are reluctant to make such
disclosures, and would be reluctant to engage in the underlying behavior if
they had to publicly disclose it.
And the Court has recognized that requirements of disclosure to the
government may substantially burden constitutional rights when they trigger social pressure that deters constitutionally protected behavior. For instance,
the right to anonymous speech and anonymous group membership stems largely
from concerns that mandated identification of speakers will lead to a risk of
ostracism and police harassment, and will thus deter speech.329 Likewise, banning
concealed carry in public places, coupled with the social pressures against open
carry, will likely deter many people from carrying guns in public places
altogether—and will thus substantially burden their ability to defend themselves.
What’s more, the historical hostility to concealed carry strikes me as inapt
today. The classic argument was captured well by the Richmond, Virginia
Grand Jury in 1820:
On Wearing Concealed Arms
We, the Grand Jury for the city of Richmond, at August Court,
1820, do not believe it to be inconsistent with our duty to animadvert
upon any practice which, in our opinion, may be attended with
consequences dangerous to the peace and good order of society. We
have observed, with regret, the very numerous instances of stabbing,
which have of late years occurred, and which have been owing in most
cases to the practice which has so frequently prevailed, of wearing dirks:
Armed in secret, and emboldened by the possession of these deadly weapons,
how frequently have disputes been carried to fatal extremities,
which might otherwise have been either amicably adjusted, or attended
with no serious consequences to the parties engaged.
The Grand Jury would not recommend any legislative interference
with what they conceive to be one of the most essential privileges of
freemen, the right of carrying arms: But we feel it our duty publicly to
express our abhorrence of a practice which it becomes all good citizens
to frown upon with contempt, and to endeavor to suppress. We consider
the practice of carrying arms secreted, in cases where no personal attack
can reasonably be apprehended, to be infinitely more reprehensible than
even the act of stabbing, if committed during a sudden affray, in the heat
of passion, where the party was not previously armed for the purpose.
We conceive that it manifests a hostile, and, if the expression may be
allowed, a piratical disposition against the human race—that it is derogatory
from that open, manly, and chivalrous character, which it should
be the pride of our countrymen to maintain unimpaired—and that its fatal effects have been too frequently felt and deplored, not to require
the serious animadversions of the community. Unanimously adopted.
JAMES BROWN, Foreman.330
Carrying arms, the theory went, was “one of the most essential privileges
of freemen,” but “open, manly, and chivalrous” people wore their guns
openly, “for all the honest world to feel.”331 Carrying a gun secretly was the
mark of “evil-disposed men who seek an advantage over their antagonists.”332
And requiring that people carry openly imposed no burden on self-defense,
precisely because open carry was so common that it wasn’t stigmatized.
Today, open carrying is uncommon, and many law-abiding people
naturally prefer to carry concealed (in the many states where it is legal). Concealed
carrying is no longer probative of criminal intent. If anything,
concealed carrying is probably more respectful to one’s neighbors, many of
whom are (sensibly or not) made uncomfortable by the visible presence of a
deadly weapon. Nor is there any particular reason to think that concealed
carrying increases lethal quarrels by suckering people into thinking that they
can safely argue with a person who they think is unarmed. We should be
aware now that strangers might well be armed, whether lawfully or not. And
the very people who are most likely to turn an argument into a gunfight—for
example, gang members—are probably especially unlikely to comply with an
open-carry-or-no-carry mandate.
So it seems unlikely that there’s a credible danger reduction case to be
made for mandating that carrying be done openly rather than concealed—
except insofar as one argues that all carrying is dangerous, and that mandating
open carry is good precisely because it will deter carrying even by the lawabiding.
Yet that is an argument that the right to bear arms in self-defense
should foreclose. If my analysis in the previous section is correct, and a right
to bear arms generally includes the right to carry, then it ought to include the
right to carry concealed.
I must acknowledge, though, that longstanding American tradition is
contrary to this functional view that I outline. For over 150 years, the right
to bear arms has generally been seen as limited in its scope to exclude
concealed carry. Constitutional provisions enacted after this consensus emerged were likely enacted in reliance on that understanding. If Heller is correct to
read the Second Amendment in light of post-enactment tradition and not
just Founding-era original meaning, this exclusion of concealed carry would
be part of the Second Amendment’s scope as well.333 And if the Second
Amendment is incorporated via the Fourteenth Amendment, its scope as
against the states might well be properly defined with an eye towards how the
right to bear arms was understood in 1868,334 when the concealed-carry
exception was apparently firmly established.
There is a response to be made against this scope argument: The historical
exclusion, the response would go, was contingent on the social conventions
of the time—the social legitimacy of open carry, and the sense that concealed
carry was the behavior of criminals—and this exclusion is no longer
sustainable now that the conventions are different.335 If this response is
persuasive, then for the reasons I argue above a ban on concealed carry
should indeed be seen as a presumptively unconstitutional substantial burden
on self-defense. But overcoming the scope objection would be an uphill battle,
as Heller itself suggests.
