In my last article on gun policy, “Does America Have The Safety On?” I discussed how and where the federal government could improve its regulatory controls on firearms, since deficiencies in policy enable proliferation, instead of restricting it. This week’s article focuses on gun control at the state level where laws vary widely, and in many cases are more permissive than federal statutes that regulate the same types of weapon. Few realize that 39 of 50 states require the granting of a weapons permit without consideration of why an applicant wants one or what they plan to use a weapon for. Many allow long-barrel rifles and shotguns to be carried in public places while loaded and without a license, and there are even localities within states that allow firearms to be carried in places expressly prohibited by federal law. As Washington takes to the gun control debate, revising the permissive policies of the states should be at the forefront of any discussion with emphasis on how states grant weapons permits, and amending “shall-Issue” provisions.
Reviewing “Shall-Issue” Jurisdictions
States with “shall-issue” provisions are compelled to grant an applicant a weapons permit so long as the applicant meets the state’s requirements for the permit. In nearly every case, a potential applicant is awarded a permit with no regard to: a) why the applicant wants a permit and b) how the applicant intends to use their firearm. On its face, this process appears a constitutionally protected application of the Second Amendment safeguarded from federal scrutiny, but upon closer examination of the Supreme Court’s definitions of the Second Amendment, there’s a strong case for amending these policies.
In District of Columbia v. Heller the court affirms the Second Amendment’s protection of an individual’s right to keep and bear arms for “traditionally lawful purposes” under the premise of a “natural right to self defense.” However, the court also explains that the Second Amentment does not protect the ownership of any type of firearm for any reason, and upholds the power of the federal government to regulate firearms under the commerce clause and “general welfare and security” phrasing. Shall-issue policies confer weapons permits to applicants without considering if the applicant intends to or actually can use a firearm for a traditionally lawful purpose as the state does not require an applicant to provide good cause. Without such a requirement the state can’t possibly know if the applicant would use a firearm that’s “in common use” (another condition from District) or for a lawful purpose.
Amending such policies to include items like good cause requirements wouldn’t violate the Second Amendment’s protections, since the court’s rulings limit the amendment’s protections and establish standards that firearms must meet to be protected and exempt from regulatory oversight. Some might argue here that District‘s limitations apply only to the federal government, but a subsequent ruling in McDonald v. Chicago uses the 14th Amendment to apply District’s decision to the states as well.
I Can Take My Rifle Where?
While the compulsory aspect of shall-issue provisions are troubling, a weapons permit is only as good as what types of weapons the state allows and where it allows a permit holder to carry them. States like Hawaii, Illinois and New Jersey pursue stringent regulations on firearms, but they’re largely in the minority, with most states employing very relaxed (if any) controls. Here are a few common themes among states:
- Most do not require a state-issued weapons permit to actually purchase a firearm
Only four states require a permit to purchase a long-barrel shotgun or rifle. 14 states require a weapons permit to purchase handguns.
- Often, states do not require the owner to register the firearm(s) that they purchase
The District of Columbia and Hawaii require long gun owners to register their firearms. Those two, alongside California, Maryland, Michigan, New York, and Washington state mandate registration for handguns
- There are states that don’t require a license to own a firearm
Hawaii, Illinois, Massachusetts and D.C. require a license to own long guns. Hawaii and Massachusetts are joined by New York with required licensing to own handguns.
- Some states allow firearms to be carried in the open, loaded with ammunition, even in federally prohibited areas
Twenty four states allow long barrel rifles and shotguns to be carried in the open. Of these 24, sixteen allow this without a license of any kind. Thirty five states allow handguns to be carried openly, and of those 35, eleven permit open carry of handguns without a permit. In light of the shooting at Sandy Hook Elementary in Newtown CT, there are several counties where the school board permits teachers or staff with weapons permits to keep their weapons on school grounds.
- There are few bans on assault versions of permitted firearms
Outside of any federal statute, the states can adopt and enact restrictions on assault weapons. At present only eight states have enacted restrictions of some kind on assault rifles and assault-type shotguns and ten have regulations on assault-style handguns
- Many states do not offer further restrictions, or honor the federal government restrictions of firearms under the National Firearms Act (NFA)
Nineteen of 50 states follow the government’s regulatory ban on NFA-restricted long barrel firearms and the same number commit to the NFA prohibitions on handguns.
Drawbacks of State Regulation and Reciprocity
Further complicating lapses in state gun policies is the general practice of reciprocity between the states, where one state recognizes permits issued from another. Reciprocity between the states undermines the tighter control policies in states like Massachusetts or New Jersey, because a person could easily travel to Georgia or Florida (whose laws are significantly more relaxed) and acquire a weapons permit. The Firearm Owners Protection Act allows for the safe passage of firearms across state lines, enabling individuals to acquire firearms in this way and effectively subverting state laws that further restrict how firearms enter and leave the state.
More broadly, the gun control policies of the majority of states are inadequate to the task of ensuring that gun owners are licensed, responsible individuals with good reason and intent to own and operate firearms. Shall-issue provisions not only encourage, but compel states to grant permits without regard to the standards of protection under the Second Amendment. A preponderance of states allow individuals to own firearms without a permit, carry them without a permit, and even carry loaded, high caliber, firearms in public, also without any type of permit or license. More than three quarters of state governments don’t enforce federal firearm prohibitions, which include restrictions on rifles, shotguns, machine guns, and explosive weapons. Lastly, reciprocity between the states further enables the acquisiton of firearms and undermines states with legitmate regulations on firearms.
So the question remains, How do we improve gun control without infringing on the Second Amendment?
- No Federal Assault Weapons Ban unless BATFE is expanded.
Legally, states do not have to enforce federal regulations on firearms, so a federal assault weapons ban is empty unless BATFE is expanded enough to allow the government to enforce it on it’s own. With only 19 states enforcing standing federal prohibitions and another 19 (between handguns and long guns) with assault weapons regulations, a federal ban is unlikely to gain traction with the states.
- Review of Shall-Issue Jurisdictions to include “good cause” from applicants
Here the federal government has some room to maneuver. Based on current case law, there’s a strong case for amending shall-issue provisions considering they compel a state to neglect confirming the applicant’s use of the firearm would meet the standard for protection under the Second Amendment.
- New Standards for State Permits, or a revised Federal Permit System
This may take a revision of the perceived relationship between the federal government and the states over gun policy, but is definitely an important piece of the solution. The laws in the majority of states don’t promote responsible gun ownership or distribution, just gun ownership and distribution. Their policies allow for the proliferation of various types or firearms for non-traditional purposes. Should the federal government move to innovate on gun control, creating new standards with requisite registration, licensing, and more restrictions on open carry, would be a good place to start.
In light of four major shootings in the last five years, America’s gun laws need revisions, considering that the acts were perpetrated by individuals with firearms that were legal to possess in their respective states. One could argue that it’s not the guns that kill a person, but the reality is that people kill other people with guns and the law should support responsible gun ownership. The Second Amendment is a critical part of our republic, but its intent is for self defense in your home, not carrying your loaded AR-15 to a public park. Proliferation isn’t by any means, your right.