After New York State’s “proper cause” standard for carrying a firearm outside the home was struck down as unconstitutional by the U.S. Supreme Court, Maryland Gov. Larry Hogan on Tuesday directed the State Police to stop using the “good and substantial reason” standard in deciding whether citizens could carry a gun.
Governor Hogan’s decision, supported by the state’s Attorney General’s Office, may make it easier for citizens to carry a gun, however, it should not make it easier for citizens to carry concealed guns. In order to regulate guns, Maryland must show that the regulation “is consistent with this Nation’s historical tradition of firearm regulation,” Justice Clarence Thomas wrote in the majority opinion that struck down the New York restrictions. And the history of firearms regulation in this country shows that the states were no more receptive to allowing their citizens to carry concealed weapons in the early 19th century than New York and Maryland are today.
While laws began to change regarding concealed carry in the late 1900s and ramped up up in the early 2000s, with nearly two dozen states doing away with concealed carry requirements altogether, many states in the early 1800s banned concealed weapons, except in certain limited circumstances.
In the 1800s, courts in Alabama, Arkansas, Indiana, Louisiana and Tennessee dismissed claims that the bans violated the Second Amendment or, in some cases, each states’ version of the right to keep and bear arms. The Georgia Supreme Court upheld a ban on concealed weapons, but held that citizens could carry weapons as long as the weapons were openly displayed.
Only the Kentucky Supreme Court found that concealed weapons were protected by the Kentucky Constitution at that time. But Kentucky later amended its constitution to supersede the decision and allow the legislature “to pass laws to prevent persons from carrying concealed arms.” (Today, residents under 21, who legally possess a gun cannot carry it concealed, for example. Residents over 21 can, according to Kentucky law.)
There were some exceptions to the concealed weapons ban in the 19th century. Alabama and Arkansas allowed citizens to carry concealed arms when they were traveling. Alabama, and, later, Texas, permitted citizens to carry concealed arms when they reasonably feared an immediate attack.
Usually, though, 19th-century judges and lawyers thought that the right to keep and bear arms referred to military arms. Joel Prentiss Bishop, a 19th-century legal scholar, wrote that the Second Amendment allowed citizens to keep those arms “used for the purposes of war,” not “those which are employed in quarrels and brawls and fights between maddened individuals.” Likewise, he wrote, “the right to ‘bear’ arms refers merely to the military way of using them, not to their use in bravado and affray.”
“This Nation’s historical tradition of firearm regulation,” pre-20th century, suggests that Maryland — and New York, for that matter — can cure any constitutional defect with their firearms laws by allowing citizens to carry firearms openly. Conversely, they can continue to regulate carry when it’s concealed.
The Supreme Court referred to states that have “shall issue” laws requiring that their citizens be allowed to carry concealed weapons if they meet certain standards. The “shall issue” laws are a relatively recent phenomenon. There does not seem to be any historical tradition to support it. It appears that only Alabama and Texas allowed citizens to carry concealed weapons in the 19th century, and in those cases, only if the citizen was in reasonable fear of an immediate attack.
To the extent that the example of Alabama and Texas should be followed, Maryland and New York could comply by allowing applicants for protective orders to request that they be permitted to carry concealed weapons while the order is in effect.
Certainly, citizens who want to carry firearms would prefer to carry them concealed from view. However, the historical tradition shows that states can regulate concealed weapons. In addition, the Supreme Court said that, while citizens must be allowed to carry weapons publicly, “the manner of public carry was open to reasonable regulation.”
Obviously, it is not ideal to have citizens carrying weapons while walking about a crowded city. However, requiring those citizens who want to carry weapons to display them openly and obviously will, at least, give fair warning to others about who is armed in their vicinity.
Edward J. Curtis Jr. (email@example.com) is an attorney and the author of “Of Arms and the Militia: Gun Regulation by Defining ‘Ordinary Military Equipment’” in the Touro Law Review and podcast.