Half of the states have laws allowing permitless concealed carry of firearms. Before members happily let their state-issued carry permit expire, some are asking if we know of unexpected pitfalls in permitless carry. This is a great topic for discussion in our online member journal, so we reached out to our affiliated attorneys, asking their thoughts on the question. While encouraging them to go beyond our questions, we tried to start the discussion by posing the following questions:
In general, what is your opinion of permitless carry laws?
For our Affiliated Attorneys in states with constitutional carry--
- Have armed citizens violated other laws by exceeding the allowances of your state’s permitless carry legislation? What problems have most frequently arisen?
- Are citizens keeping concealed carry licenses for reciprocal license recognition when they travel outside your state? Are there other reasons to keep your state’s carry permit?
- Without carry permits, how have police procedures changed when officers have contact with armed individuals?
Attorneys practicing in a state that has not passed laws allowing permitless concealed carry--
- Do you wish your state would allow permitless carry? Why or why not?
- What advantages, if any, do your armed citizen clients have because they have a carry permit? If your state passed a permitless carry law, would you suggest armed citizens in your state let their permits expire or continue to renew their permits?
We then stepped aside and enjoyed learning from an extremely wide-ranging set of opinions. This question started in May and if you missed the first installment at https://armedcitizensnetwork.org/may-2022-attorney-question may we recommend you also review it? In addition, the May comments generated responses from members, and we will cover those in this month’s Editor’s Notebook. It is our hope, as we wrap up this topic this month, that you learn as much from our affiliated attorneys’ contributions as we did.
John I. Harris III
Schulman, LeRoy & Bennett PC
3310 West End Avenue, Suite 460, Nashville, TN 37203
615-2446670 Ext. 111
http://johniharris.com • http://slblawfirm.com
A necessary place to start this discussion is to address the issue of what is “constitutional carry” and how does it differ from permitless carry. At least in Tennessee, unfortunately, most legislators and many individuals do not know the difference but it is critical in addressing the remaining issues.
First, “constitutional carry” should reference only a legal or statutory scheme where it is not a crime for a citizen to carry a firearm in public with the intent to go armed. In 1996 when I started as a volunteer advocate in Tennessee for the Tennessee Firearms Association we did not use the phrase “constitutional carry” nor was that phrased used generally in the 2nd Amendment discussions. The phrase that was more common was “Vermont carry” because at that time Vermont was the only state in the nation whose constitution had been construed to protect the right of citizens to carry a firearm for self defense without the need for any permit. Over time, the terminology of “Vermont carry” has given way to “constitutional carry” but they are essentially the same.
Second, “permitless carry” can be a form of constitutional carry, but that is not always the case. Tennessee is an example. In 2021 in Tennessee, our Governor advocated for what he and some other “moderate” legislators called “constitutional carry.” They misused, whether intentionally or ignorantly, the term. Tennessee did not pass and does not to this day have “constitutional carry.” Tennessee has a law that makes it a crime for a citizen to carry a firearm with the intent to go armed in public, at their home, on their property – anywhere! See, Tenn. Code Anno. § 39-17-1307(a)(1). What Tennessee has done is to create statutory defenses or in some instances “exceptions” to that crime. Most of these are found in Tenn. Code Anno. § 39-17-1307 or -1308. Those defenses include things such as you are in your own home, on your own property, legally hunting or that you have one of Tennessee’s TWO (2) permits. In 2021, those defenses were expanded to include “permitless carry” but even that law has seven conditions that must be met.
The reason why Tennessee is not a constitutional carry state is because any public carry is a crime to which defenses or exceptions are available. However, when Tennessee criminal procedure statutes talk about how “defenses,” or “exceptions” to a crime are addressed, the statutory scheme is clear that the only time those defenses or exceptions must be considered is by a jury at trial. An arresting officer, a district attorney, even a judge can ignore the defenses and proceed to trial. At the same time, an officer or a district attorney could consider the existence of a defense or exception, such as a valid permit, and decide “there is no sense in prosecuting this person because they have a valid defense” – the problem is that they are not required to consider it.
So, if you are a Tennessean or you plan to visit Tennessee do not assume that it is a “constitutional carry” state. The safest option, by far, if you are coming to Tennessee is to travel with a permit issued in your home state because that is the most protection (although it is still only a defense) that you can provide yourself.
Now, let’s consider some of the questions from ACLDN this month:
Have armed citizens violated other laws by exceeding the allowances of your state’s permitless carry legislation? What problems have most frequently arisen?
Yes, that does happen. For example, if you come to Tennessee thinking it is a “constitutional carry” state or even are aware that it is a “permitless carry” state, you are taking chances. For example, if you want to go to a public park in Tennessee (the Smoky Mountains for example), Tennessee law only provides a “defense” to the crime of carrying a firearm in a public park, campground, green way, etc., to those who have permits. Permitless carry is not a defense. See, Tenn. Code Anno. § 39-17-1311.
Also, for “permitless carry” in Tennessee, the law does not apply to anyone who can legally possess a handgun (Tennessee has no existing law related to carrying a long arm outside of vehicle transport). For example, 18-20 year olds can legally possess a handgun in Tennessee but the 2021 permitless carry law does not allow them to carry unless they are in or connected to military service. Tenn. Code Anno. § 39-17-1307(g). If you have a certain number of DUI charges in Tennessee or other states, that might not impact your ability to own or possess a handgun but it can and does limit your ability to rely on the 2021 permitless carry law. Tenn. Code Anno. § 39-17-1307(g) and (h). If you have a non-violent misdemeanor stalking conviction in Tennessee or another state, that does not impair your ability to purchase or possess a handgun or even to get a permit in most instances but it does prohibit you from relying on the 2021 permitless carry law in Tennessee. Tenn. Code Anno. § 39-17-1307(g) and (h).
Are citizens keeping concealed carry licenses for reciprocal license recognition when they travel outside your state? Are there other reasons to keep your state’s carry permit?
Yes. There are numerous instances why someone is far better off with Tennessee’s “enhanced” permit over either its “concealed only” permit or its 2021 permitless carry law. One is reciprocity, but the other has to do with statutory defenses and gun free zones because of the three options to carry in Tennessee the “enhanced” permit provides the greatest range of protections and defenses.
Without carry permits, how have police procedures changed when officers have contact with armed individuals?
Because of numerous problems with the statutes in Tennessee there is a lot of confusion in law enforcement on how to deal with citizens carrying a firearm in public. The core of the problem is that any public carrying of a firearm with the intent to go armed is a criminal offense. Merely seeing someone carrying a firearm in public is all that is likely required to enable an officer to have a reasonable basis to stop and detain someone and, if so inclined to detain or even arrest them. This is because all situations in Tennessee where someone can carry with intent to go armed as statutorily created as either “defenses” or “exceptions” to the criminal charge and, as a result, are the obligation of the individual to raise at trial. Now, it is clear many officers and district attorneys are not going to push it that far if they can confirm that your permit is valid or that the facts exist to substantiate another statutory defense – but they can.
Do you wish your state would allow permitless carry? Why or why not?
Constitutional carry? Yes. Permitless carry as a defense to a criminal charge, like it did in 2021, no.
What advantages, if any, do your armed citizen clients have because they have a carry permit? If your state passed a permitless carry law, would you suggest armed citizens in your state let their permits expire or continue to renew their permits?
Tennessee does not have true “constitutional carry” although we continue to work for it. The Republican governor and many in the Legislature have fought against it. However, even if we were to pass it, we would continue to recommend that everyone get the enhanced permit. One reason is reciprocity and that need would only go away if all states adopt “real” constitutional carry for anyone who can legally possess a firearm. There is also an issue involving situations in which permits are defenses relative to certain gun free zones but permitless carry, at least in Tennessee, is not.
However, there is another advantage to getting the enhanced permit. That advantage relates to the defense of an individual in a trial. As an attorney, I would much rather be representing a client who has the enhanced permit, even if it is optional, and who gets regular professional instruction from qualified instructors (not everyone is “qualified” in the sense of being an expert witness) than to put on the defense in a criminal or civil use of force scenario for someone who has no permit and gets no regular, professional third party instruction.
John R. Monroe
John Monroe Law, PC
156 Robert Jones Road, Dawsonville, GA 30534
678-362-7650
http://johnmonroelaw.com
My state (Georgia) just passed constitutional carry, so neither set of questions squarely fits. I will provide some comments that fit both before and after passing constitutional carry.
I think most people with licenses will maintain them, for two reasons. First, there is reciprocity, as mentioned in the question. But there is also an alternative to the NICS check when buying a gun at a gun store.
There are perhaps some unintended consequences for Georgia or any state going permitless. Under the federal gun free school zone act, there is an exemption for someone who has a license issued by the state where the school is located and such license allows you to carry in the school zone. Under Georgia’s CC system, no license is needed to carry in a school zone. So it cannot really be said that GA issues a license any longer that permits carry in a school zone.
John Chapman
Kelly & Chapman
P.O. Box 168, Portland, ME 04101
207-780-6500
Have armed citizens violated other laws by exceeding the allowances of your state’s permitless carry legislation? What problems have most frequently arisen?
Answer: Though potentially one might violate a state law, in practice an apparent mistake in exceeding scope of permitless carry draws a warning. There is a more serious consequence federally. ATF enforces 18 USC sec. 922 (q). If one carries on public property within 1000 feet of public school property without a permit from that state, one risks federal prosecution. That has not happened yet in our state.
Are citizens keeping concealed carry licenses for reciprocal license recognition when they travel outside your state? Are there other reasons to keep your state’s carry permit?
Answer: YES. In addition to reciprocity, one can carry in national parks (Acadia), the Appalachian trail, and state parks with a permit.
Without carry permits, how have police procedures changed when officers have contact with armed individuals?
I represent MANY cops. They have, during the last 20 years, always assumed everyone is armed unless searched. However, they are more standardized about their contacts with people they know to be armed. In Maine, being armed is no big deal.
Officer: “Where is your firearm?”
Subject: “On my right hip.”
Officer: “Well, just be sure it stays there. This is just a routine traffic stop. Thanks for letting me know.”
Of course, game wardens almost always interact with armed subjects during hunting season. No changes there.
Joseph Radzwion IV
Radzwion Law PLLC
924 Notre Dame Street, Ste. B. Grosse Pointe, MI 48230
248-702-5282
https://www.radzwionlaw.com/
Do you wish your state would allow permitless carry? Why or why not?
Yes. I do wish our state allowed permitless carry. (1) Then it would be in line with the 2nd Amendment of the Const. and as the founders of this country intended free citizens to be able to carry firearms for the defense of their families. Further explanation is really unnecessary past this document as it is the supreme law of the land. (2) Having permitless carry would alleviate every county from having to take the time to process hundreds of Concealed Pistol Licenses (“CPLs”) every year, thus reducing the amount of taxpayer dollars they use to complete such tasks. Fund could then be used for completing other needed services. (3) Permitless carry does pose some legal issues here in Michigan discussed below.
What advantages, if any, do your armed clients have because they have a carry permit? If your state passed a permitless carry law, would you suggest armed citizens in your state let their permits expire or continue to renew their permits?
Advantages to Permitless carry include: Residents not having to take an 8 hour long Concealed Carry Class. Not having to pay the county licensing fee to apply for the CPL.
Advantages to residents with CPL’s include: Carry outside of the state, carry into restricted firearms free zones, and ability to carry other residents’ pistols.
Issue #1 with permitless carry: Out of State Travel
This may surprise some, but I think Michigan should still issue CPLs to those who want one. Some of these reasons are as follows. First, it gives a Michigan resident the ability to travel to other states and carry their pistol because the other state recognizes a Michigan CPL holder’s license. Otherwise, if a Michigan was strictly a Constitutional Carry State (“CCS”), it may not allow for a Michigander to carry their pistol into another state because various states do not allow non-residents to carry a pistol unless the non-resident has a permit from their home state.
Issue #2 with permitless carry: Pistol Free Properties
Second, having a CPL in Michigan allows the CPL holder to carry a pistol into certain buildings or onto certain properties that otherwise firearms cannot be brought onto. For example, Michigan law prohibits pistols in theatres, banks and any business with a liquor license, which include most gas stations, grocery stores, drug stores and restaurants. However, the law allows for someone with a CPL to carry a pistol into these restrictive places.
If Michigan were strictly a CCS (permitless state), I think the restrictive places that prohibit pistols would become a burden to a pistol carrying residents who want to cash a check, buy a loaf of bread or fuel up their vehicle. With these types of laws on the books, my opinion is that CCS may reduce the amount of people that would carry day to day simply because of the restrictive laws. This is the second reason why I would say Michiganders should continue to keep a current CPL even if Michigan turns into a permitless state.
Issue #3 with permitless carry: Pistol Registration
Without a CPL, a Michigan resident who wishes to carry a pistol or possess a pistol, must own the pistol. Under Michigan law, in order to possess in your home, transport a pistol or carry a pistol it must be registered to you. In other words, you must be “on paper” as the owner of the pistol. The exception to this law is, you guessed it, by possessing a valid CPL. A CPL holder has the option of carrying a pistol that is owned by or registered to a family member or friend. So if the state went to permitless carry, residents would be limited to carry only pistols registered to them.
Will Michigan Become a Permitless Carry State?
Do I think Michigan will ever become a Constitutional Carry State? No, I do not. First, we have a lot of restrictive firearm laws on the books here in the state. A small glimpse is discussed above with banks and businesses with liquor licenses. and we haven’t even talked about the restrictions on carrying in a vehicle, on school property, day care centers, and the open carry exceptions with a CPL.
The second reason I don’t think Michigan will become a CCS is the state makes a lot of money on CPL applications. In Michigan a county charges between $10 to $115 per application. In 2017-2018 Michigan grossed over 8.5 million dollars on new CPL applications alone. In 2019-2020, Michigan grossed over 11.2 million dollars and in 2020-2021 the gross was over 13.4 million dollars. The state of Michigan would be taking a loss to cut out such a high money making service they provide.
The last reason I don’t think Michigan will become a CCS is that the legislature and governor rarely agree on anything pro-second amendment. In 2020, via executive order, the governor and her attorney general attempted to ban the carrying of pistols at the voting polls. Collectively, several of us pro-gun attorneys were able to file a successful restraining order to prevent such a ban. Even if the legislature receives the votes needed to pass permitless carry, the current governor would let the bill die on her desk.
My Recommendation:
If the Michigan legislature was going to pass permitless carry into law, I would only recommend Michiganders let their licenses lapse if the restrictive pistol laws were repealed. In my opinion the repeal of the restrictive laws seems very unlikely and thus I don’t recommend Michiganders let their CPLs lapse.
Legal Cites: MCL 750.227, MCL 750.231a, MCL 28.422 Sec 2, MCL 28.425o, Michigan Concealed Pistol License Act
Alex M. Ooley and E. Michael Ooley
Ooley Law, LLC
P.O. Box 70, Borden, IN 47106
812-967-4939
https://ooleylaw.com
We are happy to report that Indiana Governor Eric Holcomb signed a permitless carry/constitutional carry bill this spring. It will not become effective until July of this year. Hence, we believe Indiana is now the 24th “Constitutional Carry” state. Although we are quite pleased with this development, we are obviously not able to comment with respect to Indiana’s specific experience with permitless carry. We think it is about time Indiana joined other states in eliminating the requirement that law-abiding citizens be required to pay a fee and/or ask the government for permission to exercise a right protected by the US Constitution and the Indiana Constitution. Please note that the focus of this new law is only a change for law-abiding citizens. This law does not change who can lawfully possess a firearm. If a person could not lawfully carry and/or posses a firearm prior to passage of this law, that person would still not be able to lawfully carry or possess a firearm. Nothing changes with respect to one’s characterization as a proper person or prohibited person as a result of this law.
Hoosiers will still have the opportunity to obtain a “free” license to carry a handgun in Indiana, and we would highly encourage Hoosiers to obtain a license to carry a handgun. There are a couple reasons we encourage you to obtain your license. First, to the extent you wish to travel outside the state with a firearm, the laws in some other states may only permit you to carry in that state, if at all, with a valid Indiana license to carry. Of course, you need to be very familiar with the laws of the state(s) you intend to travel to with a firearm. Secondly, the process of applying for a license to carry in Indiana can serve as a type of vetting process to ensure that you are a proper person to possess or carry a firearm under state or federal law. For instance, we are aware of individuals who, in good faith, believed they were a proper person and not prohibited from carrying a firearm, but had something in their record from decades ago that needed to be addressed for them to lawfully possess and carry a firearm. Additionally, we have seen instances in which the state and/or federal bureaucracy have errantly characterized an individual as a prohibited person. Thus, the licensing process will bring to light any administrative issues before one might face criminal charges for illegal possession of a firearm.
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Thank you, affiliated attorneys, for sharing your experiences and opinions. Members, please return next month for a new topic of discussion.
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