West Virginia Becomes 8th State to Let People Carry Concealed Guns Without a Permit

It already allowed open carry without a permit, as do 25 other states.

Late last week West Virginia's legislature overrode Gov. Earl Ray Tomblin's veto of a bill that allows lawful gun owners 21 or older to carry concealed weapons without a permit. West Virginia is now one of eight states with that policy (although one of them, Wyoming, requires permits for visitors from other states). Thirty-three other states have "shall issue" laws that allow anyone who meets a short list of objective criteria (often including completion of firearms training) to obtain a concealed-carry permit. Just nine states (California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island) have "may issue" laws that give state or local law enforcement agencies discretion to grant or deny permits.

In vetoing the West Virginia bill, Tomblin cited opposition from police officers. The Charleston Gazette Mail reports that the governor "held a rare veto-signing ceremony Thursday, surrounded by dozens of police officers, to try to convince legislators to let the veto stand." The state House of Representatives decided to override the veto on Friday by a vote of 64 to 33; the state Senate followed suit on Saturday by a vote of 23 to 11. In West Virginia a simple majority is enough to override a veto.

"While we completely respect the law enforcement community, we also will always come down on the side of the Constitution and ensuring that our rights are protected," said Senate Majority Leader Mitch Carmichael (R-Jackson). "They want the permit process and the training associated with that, which I completely respect and admire their position, but the constitutional authority to carry a weapon is inherent in our Second Amendment."

Carmichael's comments suggest he thinks requiring a permit for concealed carry is inconsistent with the Second Amendment. The Supreme Court has never directly addressed that issue. But in District of Columbia v. Heller, the 2008 decision that rejected a local handgun ban as inconsistent with the constitutional right to keep and bear arms, the Court noted that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." That suggests the constitutional right to bear arms is the right to carry them openly, which West Virginia already allowed without a permit.

Consistent with that interpretation, 26 states let people carry guns openly without a permit, more than three times the number that allow concealed carry without a permit. In addition to the latter eight states (Alaska, Arizona, Arkansas, Kansas, Maine, Vermont, West Virginia, and Wyoming), the open-carry states include 17 with "shall issue" concealed-carry laws and one (Delaware) with a "may issue" law.

In 2012 the U.S. Court of Appeals for the 7th Circuit overturned an Illinois law that prohibited most people (aside from police officers, security guards, and a few other exceptions) from carrying ready-to-use guns. "The constitutional right of armed self-defense is broader than the right to have a gun in one's home," the court said. "The right to 'bear' as distinct from the right to 'keep' arms is unlikely to refer to the home. To speak of 'bearing' arms within one's home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home." The court noted that the need for armed self-defense, the right recognized in Heller, is at least as strong outside the home as within it, so banning guns in public "creates an arbitrary difference."

The 7th Circuit did not question the constitutionality of requiring people to obtain permits before carrying guns in public. It said a state may "limit the right to carry a gun to responsible persons," which implies a screening process that goes beyond the legal requirements for owning a gun, and added that "some states sensibly require that an applicant for a handgun permit establish his competence in handling firearms." Furthermore, the court noted that "many states used to ban carrying concealed guns outside the home" and said "a state may be able to require 'open carry'—that is, require persons who carry a gun in public to carry it in plain view rather than concealed."

Then again, a state might decide to require that guns in public be hidden away, lest they cause alarm. That is the rule in the eight states where open carry is generally prohibited, even by people with concealed carry permits. In fact, Florida, which started the recent movement toward "shall issue" carry permit laws in 1987, prohibits open carry, a policy that has been challenged on Second Amendment grounds. The one thing a state clearly may not do, if the right to bear arms means anything, is ban both concealed and open carry.

Addendum: As a few readers have pointed out, Rhode Island authorizes both the attorney general and local authorities to issue concealed carry permits. The provision dealing with the attorney general says he "may issue" a permit, while the provision dealing with local authorities says they "shall" issue a permit to anyone 21 or older "if it appears that the applicant has good reason to fear an injury to his or her person or property or has any other proper reason for carrying a pistol or revolver, and that he or she is a suitable person to be so licensed." According to USA Carry, "many Local Authorities won't issue pistol permits," instead "referring you to apply through the Attorney General." Hence whether Rhode Island counts as a "may issue" state or a "shall issue" state "is a gray area." I would add that the language concerning the licensing authority of local officials seems to allow significant (but not unlimited) discretion concerning what counts as a "proper reason" to carry a gun and what makes an applicant "suitable."