Georgia's Concealed Carry Expansion: A Victory for Individual Rights

JURIST Guest Columnist Thomas Warns, New York University School of Law, Class of 2015, discusses Georgia's Safe Carry Protection Act and the balance it strikes between rights to private property and self-defense...

Georgia Governor Nathan Deal recently signed into law a bill which expanded the rights of licensed gun owners to carry their firearms into certain public places. The name of the bill was the Safe Carry Protection Act, though critics have charged that it should be better known as the "Guns Everywhere Act." The basic moving parts of the bill are that it creates an opt-in standard for places such as schools and churches by allowing them to permit certain individuals to carry firearms onto their premises, while creating an opt-out standard for shops and restaurants, in which licensed concealed carry permit holders are presumed to be allowed on the premises unless the property owner signals his intention to deny them entry.

This bill should be heralded as a success due to the fact that it optimally blends a robust interpretation of private property rights with an appreciation for the wisdom the Founders embodied in the Second Amendment.
In D.C. v. Heller, Justice Scalia echoed established precedent that the right to keep and bear arms was an individual right, but that like any other Constitutional right, it was not unlimited. The text of the Second Amendment does not explicitly permit or deny the right to carry a concealed weapon. Justice Scalia clarified that "At the time of the founding, as now, to 'bear' meant 'to carry'," with the particular purpose of preparing oneself for confrontation. Allowing licensed gun owners to carry guns into public places furthers the Second Amendment's right of citizens to carry firearms for offensive or defensive purposes.

Many state and federal courts that have reviewed concealed carry bans prior to 2008 have allowed them to stand, but this outcome seems less likely following Heller. Chicago did not allow concealed carry permits until the Seventh Circuit reversed the ban in Moore v. Madigan. In that case, Justice Posner wrote the majority opinion which agreed with Heller in the context of the Second Amendment right to a concealed firearm. However, the dissent questioned the originalist evidence, arguing that the historical record was ambiguous at best in regards to a right to carry a weapon outside the home and pointed out that Justice Scalia went to pains in Heller to make clear that legislatures may still ban guns in schools or government buildings.

The dissent in Madigan then described how the legislature sought to limit the concealed carry of firearms because a concealed weapon could cause an escalation of criminal conduct where criminal intent doesn't necessarily exist, with the example of a minor disagreement that escalates into bloodshed because a pistol was available to one of the parties. But concealed carry laws have been passed in all fifty states and the much feared return to the "Wild West," where every dispute ends at the barrel of the gun, has failed to materialize. Actually, over the past two decades, as gun ownership has soared, national violent crime has dropped. While it would be a mistake to imply that correlation implies causation, an overwhelming amount of data suggests that violent crime rates do not rise when concealed carry laws are passed. Thus, a default which allows law abiding citizens to carry firearms for self-defense purposes should be supported. There are simply too many tales of people using guns in self-defense to save their own lives to ignore.

The likely fact is that legislatures may ban concealed firearms in certain sensitive places such as schools and churches, but that does not mean they must. While the dissent in Madigan points out that the legislature may restrict concealed carry in order to prevent gun violence, the majority opinion counters that legislatures may also allow concealed carry because it will make criminals timid knowing other people may be armed, thus improving social welfare. With competing rational explanations for a particular regulatory policy, the will of the people, expressed via the legislature, should prevail. If the dissent wanted to defer to Chicago's government in prohibiting the concealed carry of firearms, it would also have to defer to Georgia's legislature in this instance.

By easing access to concealed carry permits, the law also avoids inequities that should give rise to Equal Protection concerns in other jurisdictions. For example, New York City has some of the most restrictive gun control laws in the country. Although former Mayor Michael Bloomberg was protected by armed bodyguards, he made it tougher for New Yorkers to receive concealed carry permits. Fees run into the hundreds of dollars and the barriers are notoriously high and time consuming to hurdle. While the rich and well-connected politicians have no trouble accessing firearms, the poor are left defenseless. Wealth is not a suspect class earning heightened scrutiny from the courts, but it could be a proxy and create a disparate impact on certain minority groups that tend to be less wealthy.

The law should also be applauded on the grounds that it protects traditional property rights and in particular the fundamental right to exclude. The law involves two default positions: an opt-out for many businesses; and an opt-in for churches and schools. This strikes the correct balance of default preferences. Research has revealed that default preferences tend to be sticky and an excellent example of this phenomenon is revealed by the landmark study looking at organ donation rates. Neighboring nations had wildly different organ donation rates and it turned out that the key variable was whether the standard was opt-out or opt-in; most people didn't care enough to change from the default.

A default that allows concealed weapons inside of businesses that are normally open to the public allows the public to exercise their ability to carry a concealed weapon in a meaningful way. A concealed weapon is more helpful when one is confronted in public on foot whereas it would not be as important if you were at home or in a car where one could take shelter or escape more easily. Also, the opt-out ability gives owners of certain properties like bars control if they believe that allowing concealed weapons is not in their best interests. Customers can take note of the owner's intentions and act accordingly.

The opt-in standard for churches and schools makes a great deal of sense as well. Churches and schools are institutions which serve a limited portion of the population. They are also less likely to be the scenes of violent attacks by gunmen. They are well-suited to adapt to an opt-in standard because they have an internal governing structure that can debate and reach a consensus on whether allowing or banning guns is right in their particular circumstances. In the case of schools, the law further advances its goals of protecting children by limiting concealed gun possession on school grounds to teachers and administrators who have been through proper training.

Devolving power to local authorities is a smart decision and the wisdom of local and state control instead of federal control is evidenced by the Constitution's preservation of the key notions of federalism. Rather than a blanket federal or state rule, this law allows local leaders to make key decisions about safety. If a church or school is located next to the police station, it would seem largely unnecessary to allow concealed carry permit holders to bring their weapons onto the premises. However, if one lives in a small town with only one sheriff whose office is miles away, it may be prudent to respond differently.

The Georgia Safe Carry Protection Act strikes the right balance in respecting private property rights while granting people the ability to defend themselves. The law reflects the values imbued in the Second Amendment by our Founding Fathers and echoed in Heller and Madigan, while also maintaining a property owner's ultimate ability to exclude those whom he or she does not want on the premises. Though objectors could potentially challenge the law on the grounds that it sets the incorrect default, they will ultimately fail because it empowers local business owners, schools and churches to balance their own safety considerations independent of outside interference.

Thomas Warns earned a B.A. in History from Boston College. He is currently the Editor-in-Chief of the Journal of Law and Liberty.

Suggested Citation: Thomas Warns, Georgia's Concealed Carry Expansion: A Victory for Individual Rights, JURIST - Dateline, Apr. 30, 2014, http://jurist.org/dateline/2014/04/thomas-warns-concealed-carry.php


This article was prepared for publication by Josh Guckert, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to him at studentcommentary@jurist.org

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