No-compromise gun activists are building momentum for state laws that allow firearms owners to bring their weapons into public spaces without securing the government permits or completing the proficiency training now required in most parts of the country.
Their efforts, which have already led to new laws and legislative proposals across a quarter of the United States, is wrapped in the language of high ideals: Advocates call their preferred policy “constitutional carry,” the idea being that the only authorization they need to take their guns wherever they please was extended by the Founding Fathers themselves.
The crusade seems to have begun around a table at a 1950s-themed greasy spoon in Arizona, where four frustrated gun advocates hatched a plan between bites of barbecue.
“We decided that the Constitution means what it says,” said Charles Heller, one of the men gathered around the table at the 5 & Diner that summer day.
He didn’t mean America’s framing document. He meant Arizona’s 1910 state constitution, which states: “The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired.” How, the men wondered, could that mean anything but absolute freedom to walk armed anywhere and everywhere?
They didn’t have a lot of money to spend on lawyers for court challenges, but each chipped in $300 to found the Arizona Citizens Defense League. Within five years, the group would help make “constitutional carry” the law of Arizona and provide a model for activists in other states to follow.
And they have followed.
As states have steadily passed ever more permissive weapons-carry laws – broadening concealed-permit licenses, lifting bans on carrying guns in bars and government offices, removing shooters’ duty to retreat from a threat – “constitutional carry” has become an ultimate frontier for Second Amendment advocates.
Before 2010, two states offered the option of carrying concealed guns in public without a permit. Today, at least 10 do. A dozen more state legislatures, including Texas, New Hampshire and Virginia, are expected to consider similar measures in 2017.
“We didn’t think it would happen so fast,” Heller said.
The concept, rooted in constitutional originalism, assumes that the authors of the Second Amendment envisioned an unfettered right to wield a gun for personal defense. In this view, any limitation on an individual’s right to carry guns, however small, is unjust. Full stop. As such, passing constitutional-carry legislation is seen by proponents as a restoration, not an expansion, of gun freedoms.
As with the “campus carry” movement, the push for permitless carry has come from the grassroots more than from the National Rifle Association. While the nation’s largest gun lobby champions the latest bills in its press releases, local lobbyists who take the NRA’s absolutist rhetoric at face value find themselves chafing at its corporate model of working hand-in-glove with establishment politicians.
The resulting friction has fed into the upheaval taking place within gun politics (and American conservatism as a whole) since the rise of the Tea Party, which has left the NRA frequently following, rather than steering, the emboldened extremes of its coalition. Activists in several states told The Trace that the NRA — which did not respond to requests for comment for this story — has not helped their cause. In one state, they point to direct evidence that the NRA has undercut their proposals.
“Be very clear: It was us that got this done,” Heller told me. “The NRA is not in favor of much change.”
A newfound fundamental right
If “constitutional carry” is a natural American right, enshrined in 1791, one would expect a rich historical record explicating that freedom. But no such record existed until a few years ago. The first state to expressly allow the carrying of a firearm without a license was Alaska in 2003. It wasn’t called “constitutional carry” by legislators or reporters: It was known as “permitless” or “Vermont carry,” a nod to the New England state’s practice, since 1903, of simply not bothering to regulate gun carrying by its residents.
References to “constitutional carry” in news articles are virtually nonexistent before 2010. That’s when Governor Jan Brewer of Arizona signed the constitutional-carry bill that Heller’s group had been pushing for.
According to Heller, another Citizens Defense League officer who was a neighbor of Brewer’s, was encouraged by her to “just go for it all” while they were walking their dogs together. NRA director Chris Cox issued a statement the same day the bill passed, thanking Brewer and the Arizona Legislature for “making Arizona the third state in the nation behind Vermont and Alaska to offer its residents a constitutional carry option.”
Two weeks later, in a stroke of not-coincidental timing, Brewer signed SB 1070 — the controversial “papers, please” law to aggressively crack down on undocumented immigrants, a headache for the Obama administration’s Justice Department and an ideological and cultural touchstone that galvanized the right. Brewer’s provocations made her a darling of the then-nascent Tea Party movement, which just the month before had rallied unsuccessfully in Washington (and at numerous congressional members’ local town halls) to prevent passage of the Affordable Care Act.
The movement’s accusation against the nation’s first black president was that he was an imperialist executive, acting against the Constitution to consolidate power in the federal government. A quarter of Americans and nearly half of Republicans told pollsters that summer that they believed, in the absence of evidence, that Obama was foreign-born, and thus constitutionally ineligible to hold the office. Militia groups like the Oathkeepers, founded by an ex-aide to the libertarian Ron Paul, gained attention for vowing to oppose the “unconstitutional” orders they expected to receive from Obama at any given moment.
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Those currents might have been enough on their own to spark the constitutional-carry movement, but it was also helped by the courts. In 2008, the Supreme Court had for the first time explicitly interpreted the Second Amendment to confer an individual, not collective, right to bear arms.
The court’s ruling in Heller v. District of Columbia (no relation to the Arizona activist) did not resolve how that newly affirmed right might work outside the home, particularly where concealed guns are concerned. In the absence of legal consensus, state and local gun activists rushed in to fight for legislation that extended the Second Amendment to every sphere of life.
Constitutional-carry supporters were consciously aware of the shift in language, and in the overall argument. In Arizona, Heller said his group has long tried to rewrite the rhetoric of gun rights in ways that reframed the larger debate: Advocates of tighter firearms regulations were not “anti-gun” but “anti-freedom.” “Concealed carry” became “discreet carry,” suggesting a style choice more than a tactical one.
So it was this label that they adopted for their proposals.
“[S]ome gun rights advocates are attempting to substitute the term ‘Constitutional Carry’ because in the Constitutional era there were no laws prohibiting concealed weapon carry,” David Yamane. a sociologist and gun-culture researcher at Wake Forest University, wrote in 2014. “‘Permitless carry’ seems the best neutral descriptor to me, though I imagine some would say this normalizes the idea that one must have a government permit to carry.”
In fact, that’s precisely what constitutional-carry advocates say.
“States that focus on freedom realize that if self-defense truly is a natural-born right, and the Second Amendment truly affirms that natural-born right, you shouldn’t have to ask the government for permission to exercise it,” Tim Schmidt, president of the U.S. Concealed Carry Association, told the Washington Times last October, after Missouri became the tenth state to allow permitless carry. “Kind of like you don’t have to ask the government to exercise the First Amendment.”
Of course, the exercise of First Amendment rights is subject to some limitations, largely focused on whether their exercise incites “imminent lawless action” or knowingly commits damaging falsehoods. (Ask a roomful of gun owners whether burning the American flag should be legal to see how little consensus actually exists on First Amendment rights.) Proponents of mandatory safety training and licensing for gun owners wishing to carry in public argue, similarly, that those who seek to exercise their individual right need to show some public responsibility for it.
But for constitutional-carry advocates, no law prevents potentially irresponsible behavior.
“We don’t have presumptive regulation,” Heller said. “We have punishments for crimes. As long as you don’t misbehave, you’re fine.”
‘We can’t figure out what’s up with the NRA’
It’s hard to understate how big a shakeup constitutional carry represents to existing state gun policy, a regime shaped largely by the NRA.
In 1987, the group helped Florida become the first state to issue concealed-weapons permits to all qualified residents. Since then, all states have followed suit in some form — again, often with aid from NRA lobbyists.
I am one of those licensees.
My Florida permit came with a pamphlet reminding me where I could not carry my weapon, including government buildings, bars, malls that forbade it, and so on. Because this was before Florida and a radicalizing NRA gave the country “stand your ground” laws, the pamphlet also highlighted my legal duty to seek a retreat from a threatening situation before pulling out my handgun and opening fire. The positions were part and parcel for the NRA of that era, whose leader, Wayne LaPierre, would testify to Congress in 1999 in favor of “mandatory instant criminal background checks for every sale, at every gun show. No loopholes anywhere for everyone.”
Publicly, the NRA of today now forcefully (if fancifully) decries expanded background checks as a backdoor to a national gun registry, and, from there, nationwide gun confiscation. But its actions behind the scenes suggest that the group either regards constitutional carry as a bridge too far, or is willing to abide lawmakers who just aren’t ready to take the leap.
Consider the fate of a permitless-carry bill in Tennessee.
Pro-gun Republicans hold three-quarters of its state House, a whopping 85 percent of Senate seats, and the governor’s mansion, yet constitutional-carry legislation died unceremoniously in a Senate committee last spring. The NRA helped kill it, according to John Harris, the longtime executive director of the Tennessee Firearms Association, which wrote the doomed bill. The NRA, he said, gave Republican committee members cover by deciding to leave out their votes on the bill when updating the legislators’ letter grades from the group — an all-important mark of confidence the NRA dangles to conservative politicians seeking to assuage the more restive members of their base.
Harris’s assertion is backed up by an analysis by The Trace. Two Tennessee Republicans voted against the constitutional carry bill in committee; another abstained. None were given a letter grade lower than A-minus last year, and all were endorsed by the NRA for re-election later that fall. The regional NRA lobbyist for Tennessee, Erin Luper, declined to comment and referred The Trace to the NRA’s general media office, which did not respond to multiple requests for comment.
“We can’t figure out what’s up with the NRA,” Harris said. “On some really critical bills, the NRA almost does as much damage as the anti-gun left.”
Heller, in Arizona, echoed that assessment.
“We had the NRA fight us at first” on constitutional carry, he said. He said he believes that the national lobby’s side role as “the training mafia” may lead the NRA to drag its feet on measures that could decrease business for NRA-certified trainers who dominate the market for shooting instructors.
“When you say you no longer need to be certified, it disenfranchises instructors and pulls revenue out of their pockets,” he theorized.
Todd Rathner, an NRA director, vigorously disputes Heller’s account. “The NRA worked very closely with all the groups involved with passing Constitutional Carry in Arizona,” he said. “I know, because I was personally in every single critical meeting on the issue representing the NRA as one of their two registered lobbyists in Arizona at the time.”
‘We’re the Trumps’
While some local constitutional-carry activists have found themselves at cross purposes with NRA headquarters, they have received faithful assistance from elsewhere within the Beltway. Harris said his group had benefited from discussions and training on tactics and strategy provided by the Leadership Institute and the Foundation for Applied Conservative Leadership, groups that also train young campus-carry activists and maintain close ties with national Second Amendment organizations to the NRA’s right, like Gun Owners of America and the National Association for Gun Rights.
The tactics of the right-to-life and right-to-work movements were another influence, Harris said.
“The state organizations that are effective and aggressive have adopted more of an accountability model,” he said, by which he means: they ruthlessly pillory and rally primary challenges against uncooperative Republicans.
Nevermind that the NRA has also sought the hides of politicians who have defied it. To local activists, the national group is a hidebound practitioner of the “appeasement or olive-branch theory of governance” that keeps gun owners from claiming the full liberties owed to them.
Heller, for his part, made valuable ties with other organizers at the Second Amendment Foundation’s annual Gun Rights Policy Conference, exporting the Arizona organizing-and-lobbying model to other states like Texas, West Virginia, and Nevada.
“We’re the Trumps,” he said. “We’re the grassroots.”
Like President Trump and his top advisor, Stephen Bannon, constitutional-carry activists are unconcerned by any wider distress their agenda may cause. Like the new White House, they see the trampling of existing norms as the removal of obstacles.
“Once you cross over this PC concept,” Harris said, “then you have an enormous number of issues that come out of the gate.”
Those issues include the abolition of gun-free zones in schools, and deregulation of tightly controlled weapons categories, like suppressors and machine guns, which have been subject to strict laws for nearly a century. Rather than a drastic break with current public safety standards, he said, such changes would merely represent government “getting back on sound fundamental principles.”
Heller takes a similar stance.
With the rights of his state’s constitutional carriers already restored, his group’s new fight is focused on making it harder for private establishments and businesses to keep gun-carrying citizens out. He’s not daunted by the legislative slog that may lie ahead.
“Many of our bills have passed on the third or fourth try,” he said. “Sometimes it was a change of personnel, sometimes it was just a function of persistence.”
This story was updated to include a response from Todd Rathner, an NRA board member.