We the People of the Gun have debated constitutional carry vs. shall-issue for quite some time. The shall-issue debate breaks along the dividing line of a perfunctory NICS check vs. training/testing/qualification requirements. The debate is familiar so there’s no need to go over it again here.
But it’s dawned on me that this isn’t strictly a binary choice: constitutional carry vs. shall-issue. There might be other solutions that are worth considering.
Around the time of the founding (centuries before and decades later) there was a practice of a judge ordering a carrier to obtain a surety to guaranty his keeping the peace. Typically, the judge would impose such a requirement upon a plausible complaint that the carrier had threatened someone or had disturbed the peace.
So arguably, there is precedent from the era of ratification of the Second Amendment for some remedial imposition short of a lifetime ban on gun possession (the dreaded prohibited person status).
Strict scrutiny advocates insist that a right is absolute. But clearly, such is not the case. It is a right to be free from cruel and unusual punishment. This is a clear-cut example of an absolute right. The accused has a right to the assistance of council, to confront his accusers and to a fair trial. These rights are very nearly absolute.
Nevertheless, we accept that prisoners lose their right to keep and bear arms while under arrest or incarcerated. Most strict scrutiny advocates will concede that there is some room, constitutionally, for a denial of the right to arms upon conviction of especially egregious crimes.
The gun control industry wants to hang on to shall-issue so that they can continually raise the barriers (fees, training hours, testing, qualification, processing delays) to carry a firearm. Their ostensible objective is to “keep guns out of the hands of those who shouldn’t have them.” (read: people of color).
The strict scrutiny members of the People of the Gun will object on the usual grounds. So, we might ask, what might the legitimate arguments be for some sort of permitting requirement?
First is the “deterrent” argument. Ask any teenager what he thinks about, for example, a “curfew” by his parents. He can stay out until 10:00 PM, and if he comes home late, he’s grounded for a time. The girl he was out with gets no punishment for staying out too late, beyond possibly a talking-to. What would we expect their respective behaviors to be?
Constitutional carry is, by it’s nature, penalty-less bad-behavior carry. Unless and until the carrier commits a prohibited person-type offense, there’s no penalty for bad behavior. She can engage in bar fights, road rage and the like and her constitutional right to carry is preserved.
With no consequences, shouldn’t we expect such a permit-less carrier to behave like the girl who violates curfew with impunity? Unless her behavior is subject to something less than “sudden social death” (i.e., a lifetime grounding), she will behave as she pleases.
The old surety system imposed a penalty on an ill-behaved carrier. In the olden days, she would have to find a financially respectable friend to put his personal credit on the line. Should she misbehave again, the friend would have to pay up, causing personal embarrassment. Today, she would have to pay a bonding company for a surety. The cost of the bond would be a meaningful penalty to enable her to continue to carry.
A second issue is training. Shall-issue adherents argue, somewhat persuasively, that in an 8-hour or 16-hour course the prospective carrier learns about carry etiquette; e.g., touching or pointing to your gun while arguing is considered “brandishing.” Courses include some introduction to the laws of self-defense, prohibited carry zones and so forth. There is, admittedly, some merit to these arguments (and plenty of criticisms).
Suppose we consider what I’ll call an “un-permitting” scheme. A state’s legislature would adopt a constitutional carry law privileging the general class (those adults over 18 years of age, citizens, green card holders, who are NOT already prohibited persons). But upon a judge’s order, for reasonable cause, the right to carry may be suspended until the carrier meets a course of requirements and is issued a conditional permit.
If, for example, the carrier was accused of engaging in unsafe gun handling practices, he would be ordered to undergo gun safety training. If accused of brandishing, a course on gun carry etiquette. If found carrying in a prohibited area, a course on the applicable laws.
The major objective in mind is to ease the path toward constitutional carry in the remaining score of shall-issue states. Only felony/domestic violence incidents would trigger full revocation of Second Amendment rights on an all-or-nothing” basis. The legislature could then move from shall-issue to an “un-permitting” scheme and evaluate a move to full constitutional carry in two to five years.
Ultimately, we will have to deal with the nine may-issue states which, I expect, will be forced to adopt shall-issue under the Corlett opinion to be issued in the next 19 months or so. Expect these states to raise the barriers to apply for a shall-issue carry permit (higher fees, more training and testing, tougher qualification standards, longer processing delays).
What will be our tactic to lower such barriers? I think it would be useful to point to the success of a dozen states with “un-permitting” laws, to say nothing of the 20+ states with full-on constitutional carry. We will then be able to ask, legitimately, why the residence of these last few states are so ill-behaved and untrustworthy that they can’t possibly be allowed to handle the responsibility of permit-less carry as the default proposition.
Why must their residents all be taxed, trained, tested and qualified when the few less-responsible among them could just as well be dealt with and rehabilitated with un-permitting?