“Guns don’t kill people. People kill people.” If true, this gun rights
refrain cuts both ways. If the person—rather than the gun—is the causal
variable behind violent crime, accidental gun deaths, and mass shootings, it
follows that not all people should be permitted to carry firearms. In other
words, if the problem is not too many guns but simply guns in the wrong
hands, laws regulating the public carry of arms should limit arms to the
thoroughly trained, vetted, and law abiding. To this end, loaded, concealed
handguns should not be carried by the criminally inclined, the incompetent,
or the irresponsible. Unfortunately, recent judicial and legislative
developments are producing just that result.
The Supreme Court recently held—in New York State Rifle & Pistol
Association v. Bruen—that the Second Amendment protects the right to carry
a handgun for self-defense outside the home. The Court also held that states
can only prohibit firearms in a few narrowly construed “sensitive places.”
Simultaneously, states are enacting “constitutional carry” at an astounding
rate—allowing ordinary adults to carry concealed handguns without any
training, background check, or permit. The combined effect of Bruen and the
constitutional carry wave is more guns in more places carried by more
untrained and unvetted hands. This Article—the first of its kind in the
academic literature—offers a statutory solution to both these challenges.
For better or worse, constitutional carry and Bruen are here to stay.
States should adapt by adopting bifurcated statutory systems in which
unlicensed and licensed carry coexist. In the twenty-nine (and counting)
constitutional carry states, concealed carry permits should remain available,
and citizens should have to undergo extensive training and background checks
to obtain them. But data shows that permit numbers drop precipitously when
states enact constitutional carry. Therefore, to incentivize armed citizens to voluntarily undergo thorough training and vetting, states should exempt
permit holders from most location-based restrictions on firearms. By banning
unlicensed and open carry in some public spaces—but authorizing licensed
concealed carry—states can limit the number of firearms in public (especially
those in untrained hands) while still complying with Bruen. This Article
presents a comprehensive framework for how states can responsibly embrace
constitutional carry.