CCW

I've heard many politicians state "I believe in the Second Amendment."

I don't know what that means, exactly. It's as if the question were about the Easter Bunny or Santa Claus. Some people believe in the Easter Bunny, most people do not.

The Second Amendment is not a matter of belief or non-belief. The Second Amendment is there, and the matter before most politicians is not one of belief, but of enforcement. Is the Second Amendment, the right of the people to keep and bear arms, enforced? Will that politician enforce it in its original plain English meaning, or not?

I stand for repeal of the National Firearms Act, both Gun Control Acts, all of them. I will allow Federal laws to remain in place to prohibit a violent felon or an adjudicated incompetent from owning a firearm. But that's about it.

I will also support a Federal interpretation of the Second Amendment, enforceable upon the States through incorporation under the Fourteenth Amendment, to require the States to protect the Second Amendment as an individual right.

The US Constitution presents a baseline of protected rights, and States can only recognize this baseline, or floor if you will, or a State can recognize more expansive rights, stepping up from that floor with its guarantees of freedom. The right to keep and bear arms is one of those rights.

The US Second Amendment does not mention concealed carry, for example. So it is not clear that concealed carry enjoys any kind of Federal protection as a civil right. However, some State constitutions include language that reserves to their legislatures the power to regulate concealed carry. Colorado is one of them.

However, you understand that rights, like well-constructed houses, reinforce themselves. As stud connects to sill below and header above, so we have Fifth, Fourth, and Fourteenth Amendment rights that will reinforce the Second. Open carry of arms in public constitutes one of the "floors" of this right.

The Federal interpretation of the Second that I'd enforce against the States would be that open carry is protected everywhere and at all times, and that concealed carry can only be regulated by those States who have reserved that power for themselves in their respective Constitutions.

States whose Constitutions make no mention of a right to keep and bear arms will not be allowed to regulated concealed carry, because they will default to the Federal right, which is mute on the subject. It's important to note that, during the time of our Constitution's ratification, concealed carry was commonplace, and open carry even more so.

States whose Constitutions include a right to keep and bear arms, but are silent on the topic of concealed carry, will have to allow concealed carry without any regulation. No license, no permit, no fingerprints, no fees.

States whose Constitutions include language that denies concealed carry as a right will be allowed to regulate it, but persons' Fourteenth Amendment rights to equal protection of the law will require that States will have very even-handed, nonprejudicial CCW laws. The license must be shall-issue, it shall be affordable, it shall be granted promptly, it shall be valid everywhere throughout the State, and it shall be reciprocal with other States. Licensees will not be treated as "persons of interest."

Vermonters will be able carry concealed as they visit relatives in Massachusetts. Visitors from Yreka, California, or Grand Junction, Colorado, will carry concealed in downtown San Francisco. Olympic shooting athletes will change planes in New York City without risk of arrest or seizure of their equipment. New York's Sullivan Law will have to be thrown out with yesterday's fish wrappers.

I've heard valid arguments that States should not be allowed to reserve the power to regulate CCW for themselves. I'll leave that effort for others, and be satisfied if we can achieve the protection of the right as I describe above.

Update, 23 August 2004: Gunscribe describes this Constitutional understanding, in the breach, in Nebraska.

Also, a State whose Constitution has reserved to it the power to regulate "the carry of firearms" can still simply decline to legislate in that area. It may not be a right in Colorado, but Colorado can just choose not to regulate, license, or punish it.