Clayton E

I can only conclude that the political power of gun rights activists is now greater than that of taxpayers, pro-life activists, and every other part of conservative America. Not only did we get a Democratically controlled Congress to pass a law applying state rules to gun possession in national parks (as I discussed in a previous column)—but Speaker of the House Pelosi (who is a strong supporter of gun control) told the President to back off on a new assault weapons ban.

There are other signs of our newly acquired political power. In mid-June, a staff member from the office of Senator John Thune (R-SD) contacted me, asking for my help in locating concealed weapon permit holders who had used a gun in self-defense. The reason? The Senate’s Crime and Drugs Subcommittee will be holding hearings in late July to discuss passage of a national concealed carry law. It is not clear exactly what the nature of such a law might be: perhaps requiring all states to recognize carry permits from other states, perhaps providing some financial incentive to do so. Certainly, it would be surprising if such a bill passed out of committee and through Congress. But the fact that the Democrats were even willing to hold hearings on this subject is utterly shocking!

I would like to thank the subcommittee chairman, Senator Alan Specter, and vice-chairman Senator Lindsey Graham, for the opportunity to discuss the proposal for legislation concerning national recognition of concealed handgun permits.

This is a subject on which I have done considerable research. My master’s thesis, and also my fifth book, Concealed Weapon Laws of the Early Republic, looked into the reasons why certain states of what was then the Southwestern U.S., in the period 1813 to 1838, passed the first laws regulating the concealed carrying of deadly weapons.1 I have also published papers in the Kansas Journal of Law and Public Policy,2 Maine Law Review3,Williamette Law Review,4 and Georgetown Journal of Law and Public Policy5 relating to the history of firearms regulation, and the question of why concealed weapon laws spread throughout the United States when and were they did. My work has been cited in decisions by the U.S. Supreme Court6 and the Rhode Island Supreme Court.7 My 1995 Tennessee Law Review paper was the first scholarly examination of a movement, starting in the 1980s, in which a new wave of concealed handgun licensing laws spread across America, substantially liberalizing the older, more restrictive system.8

It is important to both understand what our current, state-based system of concealed handgun licenses is, and also why it is the way that it is. There’s a curious and at times ferociously racist history behind parts of it.

There are currently four systems of laws in use by the states regarding the carrying of concealed handguns: prohibition; discretionary issuance; non-discretionary issuance; and laissez faire. Two states alone still completely prohibit concealed carry of handguns by civilians: Illinois, and Wisconsin. At the other extreme, Vermont and Alaska have no laws requiring peaceable civilians to have permits to carry concealed handguns.

A minority of American states, among them California, New York, Massachusetts, and Maryland, have discretionary issuance permit systems. This means that, depending on the state, if a judge, sheriff, or police chief believes that there is good reason for issuance of a concealed handgun permit, an applicant may be granted one. Until a few years ago, this was the most common system for licensing the carrying of handguns. While, theoretically, arbitrary abuse of this discretion could be challenged under the due process or equal protection clauses of the Fourteenth Amendment, in practice, it has been extremely difficult for those challenging discretionary abuse to win such suits. The courts have granted a remarkable deference to issuing authorities. This is in spite of a long, and often quite openly racist history to these discretionary permit systems. And, at least in California, with which I have the most experience, there is a curiously suspicious overlap between big campaign contributors to sheriffs’ election campaigns, and permit holders in the counties where one might have good reason to carry a handgun for self-defense.9

Florida Supreme Court Associate Justice Buford spoke quite approvingly in a 1941 concurring opinion about the reason for such a system: “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 in practice has never been so applied.”10 Similarly, California’s current discretionary permit system traces its origins to a 1923 bill that prohibited non-citizens from owning handguns. The man whom newspaper accounts credited with persuading the governor to sign the law was quite open about its purpose: it would have a “salutary effect in checking tong wars among the Chinese and vendettas among our people who are of latin descent.”11 Even in states where we do not have a smoking gun, so to speak, it is interesting that these discretionary permit laws appear repeatedly in the years immediately following passage of the Fourteenth Amendment—which prohibited racial discrimination. Such racial discrimination in the post-Civil War Black Codes often directly prohibited blacks from owning or carrying firearms, or provided for discretionary issuance of licenses12—just like the laws that soon applied to everyone.

In contrast to these discretionary issuance laws, with their racist past, the vast majority of American states—forty, at last count—have what my 1995 Tennessee Law Review paper characterized as “non-discretionary” permit systems. The law defines with some precision, what persons may receive a permit to carry a concealed handgun. Some classes of persons are prohibited from receiving such permits: felons; those with recent violent misdemeanor convictions; those against whom such charges are pending; and those with recent histories of substance abuse or mental illness. Residents of the state, and sometimes non-residents, who apply must be issued a permit. There is, of course, some variation from state to state regarding training requirements. Some states also provide “escape hatches” that allow law enforcement to refuse permits to persons who have demonstrated, by a pattern of conduct that does not yet rise to the level of a criminal offense, that they would be a danger to public safety. But these exceptions are narrowly worded; few persons have been refused permits on these grounds.

Amazingly enough, this system has worked extremely well. Since 1961, Washington State has used a non-discretionary permit system, for both residents and non-residents, and Florida, since 1987. In many states, there are hundreds of thousands of permit holders; in the aggregate, millions of permit holders. Multiplied by more than twenty years of experience, we can now say with great confidence that we now have tens of millions of permit holder-years of experience—and not a single state that has changed to a non-discretionary system has gone back to the old approach. Alaska found the new system so trouble-free that they have now repealed the requirement to have a permit—although they do still issue permits so that Alaskans visiting states that recognize out of state permits may carry elsewhere.13

Yes, there have been a few violent crimes committed by those licensed under the new system. But so few that even prominent opponents of these new laws, such as Harris County, Texas D.A. Johnny Holmes publicly admitted that he was wrong. The expected catastrophe didn’t happen. The reason is simple: a relatively small fraction of our population does nearly all the misuse of firearms, and that fraction has identifiable characteristics: recent criminal convictions; mental illness problems; substance abuse; minors. Perhaps more importantly, the few serious crimes committed by people with permits have been overwhelmingly situations where it is hard to imagine that the lack of a permit would have prevented the crime.

On the plus side, there is a respectable body of evidence that the adoption of non-discretionary permit laws have made a small but statistically significant reduction in rates for murder, robbery, rape, and aggravated assault—because the victims can fight back. Even skeptics of this research have been reduced to claiming that it didn’t make any real difference. No one has provided any convincing statistical evidence that such laws, which have dramatically expanded the number of armed citizens, has increased crime rates.

One of my little hobbies is collecting news reports of civilians in the U.S. who use guns in self-defense, and putting them up on a weblog called the Civilian Gun Self-Defense Blog.14 Obviously, not every such incident gets reported to the police, or covered by the news media. Indeed, I would guess that the reports that I collect are a tiny fraction of these incidents that happen. Since 2003, when I started, I have located more than 4000 such incidents. Most of these incidents take place in homes and businesses, where concealed handgun permits are not generally required. But some of them take place in public places—and so far, I have logged 219 such incidents where a person was identified as being one of America’s millions of concealed handgun permit holders.15 Have these laws made Americans safer? They have certainly made the victims in these 219 incidents safer—and probably many tens of thousands of other Americans, who have enjoyed the benefit that violent criminals know that there is a better than 3% chance that the next person that they attack could be armed.

There are eight states that remain hopelessly mired in laws originally intended to prevent freedmen from shooting back at the Klan. I would love to see these states join the twenty-first century, and treat every law-abiding, sane adult on an equal basis. I am a big advocate of federalism—of leaving the fifty states to be fifty laboratories for experimentation, and where local conditions may require local adjustments. But federalism is not an excuse for ignoring constitutional rights. There is a persuasive body of evidence that when, in 1868, Congress sent the Fourteenth Amendment out to the states for ratification, one of the objectives was to impose the first eight amendments of the Bill of Rights onto the states—and the right to keep and bear arms was frequently mentioned, because the Southern states had used a variety of state and local laws to disarm both Union sympathizers and freedmen, as part of the Ku Klux Klan’s campaign of terror. The time has come to remind the eight states still using these discretionary permit system laws—perhaps through the force of federal law—that it’s time to move forward, perhaps by limiting federal criminal justice funds to states whose laws make it difficult or impossible for law-abiding and sane adults to exercise their fundamental right to self-defense.

I wish that I could say that the future is bright for America. There is an awful lot that the new Congress and President Obama are doing that is astonishingly, shockingly destructive. Perhaps for that reason, the Democrats have identified gun owners as a faction that is so politically powerful and dangerous that they feel a need to make us happy—while destroying nearly every other part of what has made America the nation that it is.

Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2006), is available in bookstores. His web site is http://www.claytoncramer.com.

1 Clayton E. Cramer, Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Westport, Conn.: Prager Press, 1999).

2 Clayton E. Cramer, “The Racist Roots of Gun Control.” Kansas Journal of Law & Public Policy 4:2 [Winter, 1995] 17-25.

3 Clayton E. Cramer and Joseph Edward Olson, “Gun Control: Political Fears Trump Crime Control,” Maine Law Review 61:1 [2009] 57-81.

4 Clayton E. Cramer and Joseph Edward Olson, "Pistols, Crime, and Public Safety in Early America." Willamette Law Review, 44, [2008].

5 Clayton E. Cramer and Joseph Edward Olson, "What Did "Bear Arms" Mean in the Second Amendment?" Georgetown Journal of Law & Public Policy, 6:2 [2008].

6 D.C. v. Heller (2008), citing “What Did "Bear Arms" Mean in the Second Amendment?” In addition, significant parts of Justice Scalia’s opinion are derived from amicus briefs that I helped to research and write.

7 Mosby v. Devine, 851 A.2d 1031, 1052 (RI 2004) (Flanders, J., dissenting), citing For the Defense of Themselves and the State.

8 Clayton E. Cramer and David P. Kopel, “’Shall Issue’: The New Wave of Concealed Handgun Permit

11 “New Firearms Laws Effective on August 7,” San Francisco Chronicle, 3, July 15, 1923.

12 Clayton E. Cramer, For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms (Westport, Conn.: Praeger Press, 1994), 97-127.

15 http://www.claytoncramer.com/gundefenseblog/labels/concealed%20carry%20permit.html