How constitutional carry works
Constitutional carry is the absence of government regulation, licensing, training, restriction and general involvement with the right to carry firearms, and it’s based on the premise that the founding fathers had that exact intention when drafting the Second Amendment.
The Second Amendment holds that “a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” However, the language used in this amendment has been legally interpreted at the state and federal level throughout centuries of legislation and court proceedings, often at odds with one another.
The application of this concept is spotty throughout the U.S., but its growth has been exponential.
Where constitutional carry has been adopted, and how it’s been applied
As of May 2017, constitutional carry is practiced in several states: Alaska (House Bill 102), Arizona (Senate Bill 1108), Idaho (SB 1389), Kansas (SB45), Maine (LD 652), Mississippi (SB 2394), Missouri (SB 656), New Hampshire (SB 12), North Dakota (HB 1169), Vermont, West Virginia (HB 4145) and Wyoming (6-8-104(a)(iv)).
Often, it’s boiled down to removing the permitting/licensing system for carrying firearms either openly or concealed, but in some states like Missouri and North Dakota constitutional carry only applies to concealed carry.
There are further stipulations in a few of those states, however, with many proposing and pushing legislation. Idaho with SB 1389 in 2016, Wyoming in 2011 and North Dakota in 2017 all require gun carriers to be residents in the respective state, otherwise, a nonresident carrier will need a permit depending on reciprocity agreements.
Arkansas is often listed as a constitutional carry state, but confusingly so. This is because, while the state permitting system is still in place and required, Act 746 in 2013 introduced language that afforded a defense to the misdemeanor charge of carrying a weapon for those on a “journey” with a weapon on his or her person, in a motor vehicle or readily available. The state’s attorney general released an opinion statement explaining the criminal charge is only applied if one will “attempt to unlawfully employ the handgun as a weapon.”
Montana is also at times listed as a constitutional carry state, and is an open carry state, but there is an exception to needing a concealed carry permit as per Montana Code Annotated 2014 45-8-316 for “a person who is outside the official boundaries of a city or town or the confines of a logging, lumbering, mining, or railroad camp or who is lawfully engaged in hunting, fishing, trapping, camping, hiking, backpacking, farming, ranching, or other outdoor activity in which weapons are often carried for recreation or protection.”
This accounts for about 99.4 percent of Montana.
New Mexico, another open carry state, allows concealed carry when the weapon is not loaded. In fact, there are about 31 states allowing open carry without a permit, according to the Law Center to Prevent Gun Violence.
Reciprocity is another area where constitutional carry gets brought up. Notably, in Oklahoma under 21 OK Stat § 21-1290.26 (2014), “any person entering this state in possession of a firearm authorized for concealed carry upon the authority of a state that is a nonpermitted carry state and the person is in compliance with the Oklahoma Self-Defense Act, the person is authorized to carry a concealed firearm in this state.”
More and more states are introducing constitutional carry bills, with places like Texas (HB 375) recently pushing legislation.
The fact of the matter is that constitutional carry took awhile to work its way into legislation, let alone the zeitgeist.
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Why concealed carry is recently ramping up
It’s important to consider that “constitutional carry” didn’t enter the cultural lexicon until about 2010 when Arizona became the third state to pass true constitutional carry measures.
It was primarily considered “permitless carry” and more prevalently “Vermont Carry.” Vermont was the first state in the union to have a legal system that recognized the right to carry a firearm without any permit or license.
This was established in 1903 within the Vermont Supreme Court in State v. Rosenthal. They decided that carrying a pistol only with permission from a mayor or chief of police was “repugnant to the Constitution.”
It took a century for the next state to follow suit, with Alaska passing similar measures in 2003.
A few years later in 2008 the culture surrounding firearms in the U.S. entered courtrooms and legislative discussion with District of Columbia v. Heller, which moved the interpretation from the “militia” to the “individual,” and lends credence to the operative clause of the Second Amendment being to “guarantee an individual right to possess and carry weapons in case of confrontation.”
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The application of new legislative and judicial interpretation has increased in recent years, and as more states adopt less restrictive gun control measures, federal bodies are presented with more pieces of legislation that delineate “firearms” and “freedom” away from mutually exclusive ideologies.
Constitutional carry seems to be a fundamental representation of that effort.
Jake Smith
Jake Smith is a copywriter and photographer based in the pacific northwest. He graduated from the University of Idaho with degrees in public relations and apparel.