| The Right To Carry |
Laws prohibiting concealed carrying of handguns without a permit are, in most of the United States, relatively recent. While some statutes from before the Civil War did address concealed carrying, they did so by outlawing it entirely, rather than by setting up a system whereby concealed carrying would be lawful only with a permit. These antebellum statutes usually had no exemptions for sheriffs or other peace officers, even when on duty. [1] During the 1920s and 1930s many states adopted "A Uniform Act to Regulate the Sale and Possession of Firearms." This model law, adopted by the National Conference of Commissioners on Uniform State Laws and supported by the National Rifle Association, prohibited unlicensed concealed carry.
Recognizing that there were circumstances when at least some civilians would have a legitimate need for concealed carry of a handgun, most states adopted provisions allowing a sheriff, police chief or judge to issue concealed handgun permits. Significantly, such statutes were broadly discretionary; while the law might specify certain minimum standards for obtaining a permit, the decision whether a permit should be issued was not regulated by express statutory standards. [2]
In some parts of the United States, concealed handgun permit statutes were passed for frankly racist reasons, as a method of prohibiting Blacks from carrying arms. "The statute was never intended to be applied to the white population and in practice has never been so applied," in the words of a Florida Supreme Court Justice. [3]
While the motivations behind California's concealed handgun statute are not as clearly understood, the effect has been similar. California's legislative research body studied the issue in 1986 and concluded: "The overwhelming majority of permit holders are white males." [4] Because so many victims of violent crime are female or non-white, the discrimination in granting of carry permits is especially hard to justify. [5]
Not every state adopted the Uniform Act. Some states had already enacted their own statutes. [6] Vermont adopted no statute prohibiting concealed carry of handguns, at least partly because of the Vermont Supreme Court's expansive reading of the Vermont Constitution's protections in State v. Rosenthal (1903). [7] Today, Vermont still has no laws prohibiting or regulating concealed carry, except "with the intent or avowed purpose of injuring a fellow man..." [8]
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"Shall Issue":
The New Wave of Concealed Handgun Permit Laws
By Clayton E. Cramer & David B. Kopel
Independence Institute.
1. State v. Reid, 1 Ala. 612 (1840). See generally Clayton E. Cramer, For The Defense Of Themselves And The State: The Original Intent & Judicial Interpretation of the Right To Keep And Bear Arms (Westport, Conn.: Praeger, 1994), pp. 76- 78. Even the most restrictive state laws, however, included an exemption for travelers.
2. Gregory J. Petesch, ed., Montana Code Annotated, (Helena, Mont., Montana Legislative Council: 1990), p. 371. Also, Assembly Office of Research, Smoking Gun: The Case For Concealed Weapon Permit Reform (Sacramento, State of California: 1986), p. 6-8. See also Cramer, pp. 172-178, 263-264, and Don B. Kates, Jr., "History of Handgun Prohibition", in Don B. Kates, Jr., ed., Restricting Handguns: The Liberal Skeptics Speak Out (North River Press: 1979), for details of the late arrival of concealed handgun statutes in the North and West.
3. Watson v. Stone, 4 So.2d 700, 703 (Fla. 1941): "...the Act was passed for the purpose of disarming the negro laborers and to thereby reduce the number of unlawful homicides...and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population...and there has never been, within my knowledge, any effort to enforce the provisions of the statute as to white people, because it has been generally conceded to be in contravention of the Constitution and non-enforceable if contested."
4. Assembly Office of Research, Smoking Gun: The Case For Concealed Weapon Permit Reform (Sacramento, State Of California: 1986), p. 2.
5. According to the FBI, 49.6% of murder victims in 1991 were Black. FBI, Uniform Crime Reports for the United States 1991 (Wash., 1992), p. 16 table 2.4.
6. At least one state, California, replaced an existing statute with the Uniform Act. See Statutes of California Passed At The Extra Session of the Forty-First Legislature, (San Francisco, Bancroft-Whitney: 1916), p. 221, to see the differences and similarities between the 1917 California concealed handgun statute, and the Uniform Act adopted by California in 1923.
7. State v. Rosenthal, 75 Vt. 295, 55 Atl. 610 (1903).
8. Vermont Statutes sec. 4003.
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