Injury Laws: A survey of legislative action on Second Amendment issues in 2015

What progress has been made on gun law reform in state legislatures this year? Here is a summary of enacted state legislation related to Second Amendment rights.

Constitutional amendments. The most important enactments are those which amend a state’s constitution, as they are the highest expression of the people’s will. During the last half-century, the people of about two dozen states amended their constitutions to add or strengthen protection of the right to keep and bear arms; these amendments showed that the people view the right to arms as important for modern times. Protection of the right to hunt and fish first appeared in the Founding Era, in the Vermont constitution. Today, 18 state constitutions give express protection to the right. In November 2015, the people of Texas will vote on a right to hunt amendment which has been referred to the people the state legislature. The proposed Texas amendment provides:

“(a) The people have the right to hunt, fish, and harvest wildlife, including by the use of traditional methods, subject to laws or regulations to conserve and manage wildlife and preserve the future of hunting and fishing.
(b) Hunting and fishing are preferred methods of managing and controlling wildlife.
© This section does not affect any provision of law relating to trespass, property rights, or eminent domain.
(d) This section does not affect the power of the legislature to authorize a municipality to regulate the discharge of a weapon in a populated area in the interest of public safety.”

In Indiana, the people will vote on a similar referred amendment in the 2016 general election:

“(a) The right to hunt, fish, and harvest wildlife: (1) is a valued part of Indiana’s heritage; and (2) shall be forever preserved for the public good.
(b) The people have a right, which includes the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to the laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly to: (1) promote wildlife conservation and management; and (2) preserve the future of hunting and fishing.
© Hunting and fishing shall be a preferred means of managing and controlling wildlife.
(d) This section shall not be construed to limit the application of any provision of law relating to trespass or property rights.”

Right to bear arms. In all but seven states, the right to bear arms is protected by “Shall Issue” legislation for the issuance of concealed handgun carry permits. They provide a fair and mostly objective process for the issuance of a permit to persons who meet the statutory standards, which typically require a fingerprint-based background check, and safety training. To enact right to carry in the first place, it is usually necessary for proponents to win the votes of moderate legislators by including various extra features in the permitting process, or limitations on where the carry permit is valid. Usually, once the Shall Issue process has been established for several years and the public has seen how it works, the original restrictions are gradually modified or removed. The pattern continued in 2015.

Michigan: Permitting process simplified and expedited, with elimination of county licensing boards. Permits will now be issued by the Michigan State Police.

Mississippi: Costs reduced, and process simplified.

Kentucky: Expansion of available curriculum which can be used to satisfy the training requirement.

Montana: Renewals streamlined.

Tennessee: lifetime permits now available, any may be used for any handgun the holder legally owns or possesses.

Arkansas: Age for permit issuance was lowered from 21 to 18 for past or present members of the armed forces.

Reciprocity. The reason that your driver’s license issued by your home state is valid in the rest of the United States is because the states have voluntarily entered into reciprocity agreements to recognize each other’s licenses. In general, most states are willing to recognize the carry permits of other states, but there is much variation. As with the permitting process, reciprocity tends to become less restrictive after states have experience with Shall Issue. This year, Minnesota and Nevada broadened their reciprocity recognition.

Where to carry. Again, after legislators and the public become accustomed to the widespread practice of licensed carry, the trend is to remove prohibitions about where licensed carry is allowed.

Tennessee: local option to ban licensed carry in public parks has been removed. Protection of firearms in parking lots was improved.

North Dakota: removed restrictions on carry in public parks, stores that sell liquor, and public highway rest areas.

Arkansas: removed prohibition on handguns in certain public parking lots.

Illinois: various technical improvements, including that when a carry gun is temporarily stored in an automobile trunk, it need not be unloaded. (Unloading and then reloading raise the risk of an accidental discharge, compared to simply putting into the trunk the holster which contains the gun and covers the trigger.)

Texas: public institutions of higher education may not prohibit licensed carry on campus. Governing bodies of those institutions may designate limited portions of a campus as off-limits.

K-12 schools. School shootings usually end as soon as the first armed defender arrives on the scene. Several states took action to increase the possibility that the armed defenders will already be present.

Wisconsin: Carry on public school property is expanded to include off-duty, retired, and out-of-state law enforcement officers.

Arkansas: Statutory ban on carry at private K-12 schools removed; these schools can now set their own policies.

Georgia: Public school districts prevented from imposing their own restrictions on firearms.

Oklahoma: designated K-12 employees who have carry permits and extra training may carry at school functions.

Open carry. During the 19th century, the open carry of handguns, without need for a permit, was the American standard, whereas concealed carry was sometimes viewed with suspicion. The majority of states have never required a permit for open carry. Even though licensed concealed carry is today more common than is open carry, nearly all states allow open carry. Texas had been anomaly, one of the few states to prohibit open carry of a handgun. This year, Texas repealed its unusual restriction; now a person who has been issued a handgun carry permit may carry concealed or openly. Although the image of open carry is someone with an outside-the-belt holster, the much larger group of beneficiaries are persons who will continue to carry concealed, but who now do not have to worry about momentary exposure of their handgun. For example, a person who is carrying concealed in a shoulder holster will not be criminalized just because a strong wind blows her jacket open.

Permitless carry. Given the widespread lawfulness of permitless open carry, some persons ask why a permit should be required for concealed carry. Advocates sometimes call permitless carry “constitutional carry.” This year, concealed carry without need for a permit became lawful (as the long as the adult carrier may lawfully possess a handgun) in Maine and Kansas. In Mississippi, a concealed carry permit is no longer necessary to carry a firearm enclosed in a purse, briefcase, or satchel.

Possession, acquisition and loans

The right to “keep” arms necessarily includes the right to acquire them, and to possess and use them. This year, one state enacted major new restrictions, while several states removed restrictions.

Oregon: so far this year, the only legislative enactment to constrict the rights of law-abiding gun-owners. Now, it is illegal for Oregonians to loan or sell firearms to each other, unless both parties to the transfer travel to a gun store, which must process the transfer as if it were a sale from the dealer’s inventory. There are some limited exceptions, but the new statute is still a significant contraction of traditional rights.

Wisconsin: repealed the 48-hour waiting period for handgun purchases.

Maryland: repealed the requirement that handgun purchasers must provide the government with a test-fired empty case. “Ballistic imaging” is a forensic process to match a fired case to a particular gun. It is simple for a criminal to defeat; rubbing a file inside the barrel will alter the barrel’s ballistic signature. In the early 21st century, universal collection of test casings from all handgun purchasers was a big issue for the gun control groups; but as I explained in a 2003 monograph, this actually harms forensic work, by creating too many false matches in the system. Computers help with the first round of ballistic imaging, but the final matching must be done visually by an expert, who compares the images from a recovered casing to the potential matches identified by the computer. Collection of ballistic data from law-abiding purchasers never contributed to the solution of a crime, and the expensive, wasteful mandate has been repealed in the few states where it had been imposed.

Alabama: Repealed handgun registration.

Minnesota: now allows purchase of long guns in non-contiguous states. Under the federal Gun Control Act of 1968, handguns may only be purchased in the state of one’s residence. Interstate long purchases were allowed, but only in a state contiguous to one’s state of residence. The long gun limit was removed by the Firearms Owners’ Protection Act of 1986. Of course the purchase must still comply with all the laws of one’s home state and the state of purchase.

Nevada: Social workers may not forbid foster parents from possessing firearms or ammunition at home.

Tennessee: Sets up process for relief from disabilities for persons who have recovered from a mental illness.

Virginia: Restoration of rights process improved to recognize restorations in other states. Restoration process may be used by former residents.

Preemption

Except for Hawaii, every state has some law to “preempt” local gun controls. The majority model is complete preemption, while a minority allow for local laws on certain authorized subjects (e.g., firearms discharge), or only preempt certain matters (e.g., requirements for gun purchases; or the statewide validity of carry permits). In 2015, Nevada strengthened its preemption statute to eliminate Clark County’s handgun registration, and to make lawsuits against non-compliant localities easier. Arizona added the “transfer” of firearms to the list of matters on which localities may not legislative.

Knives

Politically, the Second Amendment debate has been mainly about firearms, but the Amendment protects “arms,” not solely firearms. In the past five years, legislatures have been enacting two types of knife law reforms.

Preemption. These statutes follow the model of firearms law preemption. Nine states now have knife preemption, with Texas and Oklahoma passing preemption laws this year. The Texas statute is particularly significant, since two Texas cities (San Antonio and Corpus Christi) were among the top-10 most repressive nationally.

Prohibitions. Some states have laws against switchblades, which are “automatic” folding knives. When the operator pushes a button or moves a lever, a spring automatically pushes the blade into the open position. Another category of prohibited knives has been “dirks, daggers, and stilletos.” The switchblade ban is a relic of 1957 musical “West Side Story,” in which gangs of juvenile delinquents fought each other with switchblades. Since 2010, ten states have repealed statutes on prohibited knives, with Maine, Nevada, and Oklahoma acting this year. Switchblades are now legal without restrictions in 27 states, and legal with some restrictions in a dozen more. In Knives and the Second Amendment (U. Mich. J.L. Reform), I argued that it is unconstitutional to prohibit any modern knife, or to regulate them more severely than handguns, which are, obviously, much more potentially dangerous than any type of knife.

Air guns

Nobody would claim that modern air guns are the best defensive arm, but they are useful for target practice and building proficiency and accuracy indoors or outdoors (with appropriate backstops). In contrast, only a minority of people own enough land to create a safe target range for firearms. Air guns are also usable for small game hunting. A few jurisdictions regulate them as if they were firearms. New York City bans them entirely. In 2015, Michigan repealed its laws which treated air guns like firearms.

National Firearms Act

The National Firearms Act of 1934 (NFA) imposed a federal tax and registration system on certain arms: short rifles, short shotguns, machine guns, and suppressors. (Plus some other miscellaneous items.) NFA arms are legal in the large majority of states, providing of course that the owner is in compliance with the NFA. The modern trend has been the removal of additional restrictions in the minority of states which prohibited or limited lawful use of NFA arms.

Suppressors. For the typical gun owner, the most relevant item covered by the NFA is the suppressor. Suppressors are cylinders which are attached by screw threads to the muzzle of a firearm. They reduce the sound level of a gunshot by about 15-30 decibels. Although suppressors are sometimes called “silencers,” this is a misnomer. Reducing a 165db shotgun blast to 145db still makes it louder than a jet engine from 100 feet away (140db) or a loud rock concert (115db). Only in secret agent movies does a suppressor actually function as a “silencer.” Suppressors are an anomaly in American arms control law, in that they are the only item for which U.S. controls are much more restrictive than the laws in Europe. There, suppressors are widely used for hunting, since they reduce noise pollution, and hence the annoyance of persons who live near hunting areas. Firearms instructors often prefer them, not only for general noise reduction, but also because they reduce the noise-related flinch of some beginning shooters. This year, Minnesota re-legalized suppressors, thus reducing to 9 the number of states with a suppressor ban. Possession of suppressors was already legal in Vermont and Montana, but those states now fully allow hunting with suppressors. There are four states where suppressors are legal, but not allowed for hunting.

Short shotguns and rifles. The NFA applies to rifles or shotguns whose total length is under 26 inches, or or whose barrel is under 18 inches (shotguns) or 16 inches (rifles). This year, they were relegalized in Indiana, as long as their ownership complies with the NFA. North Dakota legalized use of short rifles for hunting.

Shall Certify. The federal Bureau of Alcohol, Tobacco, Firearms & Explosives will not process an application to acquire or manufacture a NFA arm unless the applicant has a signed “ATF Form 4.” In this form, a state or local Chief Law Enforcement Officer certifies that he has no reason to believe that the applicant intends to use the arm unlawfully, or that her possession would be unlawful. In some jurisdictions, some CLEOs have refused to process any Form 4, and therefore have imposed de facto prohibition on NFA arms. To prevent such abuses, states are enacting “Shall Certify” legislation, to require that a CLEO certify a Form 4 within a specific time period, unless the CLEO has a specific reason to reject the applicant (e.g., failing a background check). In 2015, Shall Certify was enacted in Arkansas, Minnesota, North Dakota, Tennessee, and West Virginia–and also in Louisiana for persons who have a concealed carry permit. This brings the number of Shall Certify states to 13–rapid progress for one of the newest issues for gun law reform advocates.

Statutory revision. Tennessee and Texas revised their state laws so that compliance with the NFA is now an exception to the statutory ban on possession, rather than an affirmative defense.

Hunting

As Justice Alito explained in McDonald v. Chicago, “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” Thus, the Second Amendment right encompasses lawful purposes other than self-defense. Of these, hunting would be the most notable; unlike in the Old World, hunting was America was always open to everyone, from the first days of human settlement. As the proposed constitutional amendments (above) recognize, the American tradition accepts a degree of regulation for hunting more extensive than the regulations which have traditionally been accepted for defensive gun ownership.

Apprentice hunting. These programs allow a minor who does not have a full hunting license to hunt under the supervision of an adult hunter who does have a license. Forty states now have apprentice hunting programs, including Colorado, Iowa, Maine, Montana, and New Jersey this year. In Tennessee, the existing apprentice hunting program was expanded.

Sunday hunting. As a relic of the Blue Laws against activity on the day of the Christian Sabbath, some states on the eastern seaboard prohibit or have special limits on Sunday hunting. In 2015, North Carolina legalized Sunday hunting on private property, if the owner consents.

Illinois: Bobcat hunting is now allowed.

Nevada: Concealed handgun carry now allowed while a person is engaged in bow hunting. The handgun is not for taking a game animal, but rather for protection from human or animal predators.

Virginia: Members of the armed forces who are stationed in Virginia may obtain a state resident hunting license.

Emergencies

After Hurricane Katrina hit Louisiana in 2005, police in New Orleans and St. Tammany Parish illegally confiscated firearms from victims who were evacuating, or who were sheltering place. As a result, many states enacted legislation to expressly declare gun confiscation during emergencies to be illegal. Minnesota is the most recent state to do so, outlawing confiscation, and also stating that the government may not impose special restrictions on firearms carrying, use, possession, or acquisition during emergencies. Florida enacted a statute specifically protecting the transportation of firearms during emergency evacuations.

Lawsuits

Indiana: a new statute strengthens the state’s ban on lawsuits which blame lawful firearms manufacturers for criminal use of guns. The statute spells the end of the City of Gary’s lawsuit, the last hanger-on of a wave of municipal lawsuits which were orchestrated in the late 1990s by the group now known as the “Brady Center.” Most such lawsuits had been dismissed following the enactment of the 2005 federal Protection of Lawful Commerce in Arms Act, or one of its many state analogues.

Arkansas, Nevada: strengthened civil immunity for persons who lawfully use deadly force in defense of self or defense of another.

Privacy

Tennessee: Schools may not require students or parents to provide information on firearms ownership. Law Enforcement Agencies may not require employees to disclose ownership of non-duty firearms.

Privacy of carry permitees. In Ohio, lists of permitees are no longer available to media. (Formerly, there had been a media exception to the privacy statute.) In West Virginia, carry permit applications are now confidential. In Illinois, there are new limitations on the privacy waivers which are mandatory for carry permit applicants.

Federalism

Tennessee: state personnel and financial resources may not be used to enforce federal gun control laws.

First Amendment

Nevada: schools may not discipline students for wearing clothing that depicts arms, nor may they punish students for “simulating” firearms, as with a “finger gun.”

Equal Protection

Legal resident aliens. State gun control laws of the early 20th century were often xenophobic–in part a reaction against the very high immigration rates from Southern and Eastern Europe until the Immigration Act of 1924. Some states banned handgun possession (or all guns) by persons who had not yet been naturalized. Under modern Equal Protection doctrine, such state-level discrimination against legal resident aliens is plainly unconstitutional, and all the court challenges to such laws so far have succeeded. Some states have been proactively removing statutes which target legal immigrants. This year, Arkansas changed its laws to allow permanent U.S. residents who are not citizens to obtain a concealed carry permit.

In this article, I have not covered technical reforms to improve reporting of information for background checks, state statutes to parallel federal statutes on prohibited persons (e.g., convicted domestic violence misdemeanants), expansions in state laws regarding use of deadly force (e.g., “Castle Doctrine”), or laws for pro-Second Amendment license plates.

So far this year, 28 states have enacted legislation which expands protections of Second Amendment rights, and one state has enacted legislation to reduce those rights.