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Shotgun News, August 20, 2004, p. 11

Lawsuits Against Concealed Carry

I guess we can regard this as a positive sign: anti-gun forces increasingly have to rely upon judges, not legislators, to win their battles. Thirty years ago, in much of the United States, gun rights activists counted on judges to stop the most outrageous gun control laws, because there was little chance of stopping gun control laws in the state legislatures. Unfortunately, judges were usually even less friendly to gun ownership than the legislatures, and the results weren't pretty.

Today, in state after state, gun rights activists are able to mobilize state legislators to pass sensible gun laws--and it is the anti-gun forces that rely upon lawsuits and judges to block our agenda. In the April 1, 2004 issue I told you about a less than complete victory in Missouri, where the Missouri Supreme Court upheld the authority of the state legislature to adopt a concealed handgun license law. Also this year, the New Mexico Supreme Court upheld the authority of the state legislature to pass a concealed carry law.

Most recently, anti-gunners in Ohio and Minnesota have filed suits attempting to block implementation of non-discretionary concealed handgun permit laws. The Ohio Coalition Against Gun Violence filed suit asking the Ohio Supreme Court to block implementation of the new law, insisting that county sheriffs do not have the resources to conduct thorough background checks of applicants. I find it amusing that the same crowd that wants the police to run a background check on all gun purchases (of which there are hundreds of thousands each year in most states), claim that police lack the resources to run background checks on tens of thousands of concealed handgun licensees a year?

The Ohio Supreme Court, which has already upheld the authority of the state to regulate concealed carry, unanimously dismissed the lawsuit without comment.¹ This is not a good sign for the anti-gunners. It would appear that not a single member of the Ohio Supreme Court was prepared to take their argument seriously.

The news from Minnesota isn't quite so good. A coalition of church groups filed suit against Minnesota's 2003 non-discretionary concealed handgun license law. Their complaint was that the Minnesota Constitution prohibits the legislature from passing any bill with more than one subject--and the new law was actually added to a hunter safety bill.²

Now, I can understand why the Minnesota Constitution has such a provision. The goal is to prevent the sort of bills that state legislatures pass all the time, which combine completely unrelated laws in a form of logrolling. Legislative logrolling is when special interests that do not enjoy majority support for a particular law all work together to pass a bill that combines all of these individually unpopular laws. However, this is the way that many laws get passed in Minnesota (and elsewhere), where legislators seem to consider this requirement for single subject bills just a minor nuisance to work around. As Minnesota House Speaker Steve Sviggum explained it to Minnesota Public Radio: "Fully within the realm of the law, fully within the realm of the rules.... There was obviously nothing that was broken in regards to the procedure. We outmaneuvered 'em, yes!"³

Unfortunately, Ramsey County District Judge John Finley agreed with the anti-gunners, and issued an injunction against the new law. My friend Joe Olson teaches law at Hamline University, and made the point that the Minnesota Supreme Court has only struck down one law in the last 25 years for violating the single subject rule--and that was "a prevailing wage provision stuck in an education bill." The Minnesota Supreme Court has generally given the legislature the benefit of the doubt on this matter, "so long as a common thread connects [a provision of the law] to the general subject of the original bill, even though the connection is a mere filament." It would seem that concealed carry permits have at least some slight connection to the subject of hunter safety, so we may still win this on appeal.

While the Minnesota Attorney-General appeals the district court ruling, the new law is inoperative. The old law allowed sheriffs to issue concealed carry permits--so those who have received permits under the new law can apparently still carry concealed.⁴ Sheriffs who were required to issue under the old law are no longer required to issue--but since the expected crisis of gunfights in the streets didn't develop, perhaps some of the sheriffs who were problems before will be a bit more reasonable. I certainly will not give Minnesotans any advise what to do with respect to the new law, but I would encourage you to be cautious until this matter is resolved.

There is a silver lining to these lawsuits. They do remind us that the gun control movement has turned a corner in this country. There used to be a majority of Americans who supported gun control laws so automatically that our side seldom had a chance of winning in the state legislatures. That has clearly changed. Gun control groups now must rely not on lobbying legislators, but on highly technical legal challenges, where judges (whose elitism makes them generally more sympathetic to gun control) make the decisions. As with many other struggles going on in this country right now, it is worthwhile to remember that the ultimate authority of a government comes not from judges, but from the consent of the governed. Increasingly, gun control groups are removing the fig leaf that covers their contempt for this principle of majority rule.

Clayton E. Cramer is a software engineer and historian. His last book was Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger Press, 1999). His web site is http://www.claytoncramer.com.