We’ve all seen some pretty dumb arguments against permitless carry; from assertions it’ll lead to the “Wild West” to complaints that the law amounts to defunding the police since issuing authorities won’t be getting as much money from application fees. I have to say, however, that an op-ed in the Palm Beach Post managed to introduce a line of attack I’ve never run across before: permitless carry is unconstitutional.
Unfortunately for attorney Christopher McClenic, who’s the founder of a group called Say No to Permitless Carry in Florida, he never quite explains how the state’s law allowing lawful gun owners to both keep and bear arms without getting a government-issued permission slip violates the Constitution. Instead, his screed is chock-full of the same anti-2A talking points we’ve heard dozens of times before.
As Americans know, the U.S. Supreme Court is the ultimate decision maker with regards to our laws meeting or exceeding constitutional limits. This, of course, includes matters pertaining to the second amendment and other firearm laws. Because of this responsibility, the Court recently heard the case of a 108-year-old New York law limiting who could obtain a license to carry a concealed handgun in public. The law stated applicants needed to provide a justifiable reason to carry a firearm.
Furthermore, the state reserved the right to refuse applications to carry, if it found the reason insufficient. The court concluded the law was unnecessarily stringent and unconstitutional. While gun rights supporters hoped the Court would acknowledge the second amendment guaranteed the right to carry a firearm in public, even with its 6-3 conservative majority it did not.
Has McClenic even read the Bruen decision? If so, he must have missed this crucial bit on page 2 of the majority opinion: “New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.”
Sounds like a pretty explicit recognition that the Second Amendment protects a right to carry a firearm in public, does it not? If that’s not clear enough for McClenic, there’s also this bit from the third page of the opinion:
The Court has little difficulty concluding also that the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry.
McClenic notes that Justice Brett Cavanaugh said in a concurring opinion that nothing in Bruen prohibits states from imposing “shall issue” licensing requirements, but that doesn’t mean that the 27 states that have adopted permitless or constitutional carry are somehow violating the Second Amendment or any other clause in the U.S. Constitution. Instead, he complains that the permitless carry law is a “sham” designed to “benefit DeSantis’ presidential ambitions”.
Even if that was the case (and I’m not conceding that McClenic is correct in his assumption), it doesn’t explain why 25 other states adopted permitless carry before DeSantis put pen to paper, nor why other states have done the same since. Nebraska approved its own permitless carry law after Florida, and next year we’re likely to see Louisiana follow suit (and perhaps North and South Carolina as well).
When it comes to the right to carry, the Supreme Court has declared that “may issue” licensing regimes that deny average gun owners their right to bear arms through the use of arbitrary and capricious standards is unconstitutional. There’s nothing in the Bruen decision, however, that even remotely hints that “shall issue” licensing regimes must be in place in order to comport with the Constitution. The Florida statute might offend McClenic’s sensibilities, but it doesn’t violate anyone’s constitutional rights.