In economics there’s a concept called signaling. The economic idea of signaling is that asymmetry of information can lead to upsets in the exchange of goods and services, since one party can have more information than the other in any given exchange. A way people get around this, in an economy, is through a signal that might reveal some bit of relevant information to the other party. An example of signaling:
Spence assumes that for employers, there’s no real way to tell in advance which employees will be of the good or bad type. Bad employees aren’t upset about this, because they get a free ride from the hard work of the good employees. But good employees know that they deserve to be paid more for their higher productivity, so they desire to invest in the signal – in this case, some amount of education.
I think this has also been a longstanding issue when it comes to the carrying of weapons in a public setting. It was Eugene Volokh that got me thinking about this issue in his post on what the Constitution says about carrying of arms outside the home. There are legitimate reasons for someone to carry a firearm in a public place, but there are also nefarious reasons for one to do so, such as armed robbery.
In the 19th century, we had the rise of the doctrine of open vs. concealed carry in many parts of the country. It is probably also not a coincidence that the 19th century also saw the introduction of police, starting with the professionalization of watchman in the early 19th century, and later with organized, professional police in the early to mid 19th century. Once the public peace was turned over to professionals, there needed to be a signal to separate the virtuous from the criminal when it came to carrying weapons.
I would argue that open carry likely served as that signal beginning in the 19th century. Open carry offered a means for the constabulary to quickly discern a legitimate arms carrier from a nefarious one, since a gentleman could be counted on to advertise his status as armed, or disarmed, and thus someone concealing a weapon could be determined to have criminal intent. That worked well in an age where there wasn’t much in the way of record keeping, and certainly no communication system for officials to call on records over great distances. Open carry probably began as a much more informal social signal, and later came to become embodied into formal legal custom.
Come to the late 19th, and early 20th century, America is flooded with new immigrants and with freed blacks migrating into cities looking for jobs. The population is becoming increasingly urbanized. People become concerned about the new immigrants and freed blacks roaming about armed, and start restricting the carrying of weapons with an aim to reduce crime and mayhem. Carrying of arms disappears from large portions of the country. At this point, people no longer feel comfortable in the old social and legal customs, but records and communications are not yet at the point yet where they could be used as signals with any degree of confidence.
Come to the late 20th century, and suddenly you have both the record keeping and communications to quickly share information, so we begin to establish a new signal to replace open carry, known as the concealed carry license, or concealed carry permit. While it is not so overt a signal as open carry once was, it is a signal to law enforcement that you’re exceedingly likely be a law abiding individual carrying a weapon for legitimate self-protection. You have jumped through the hoops to fulfill the legal requirement, and been certified by a trusted party. In the 19th century, there would have been no trusted party to authenticate the signal, so reliance had to be placed solely on adherence to a difficult social custom. I have no doubt that many in the 19th century understood the tactical disadvantages of open carry.
In conclusion, as much as I might support Alaska and Vermont style carry, without any license whatsoever, the use of signaling to establish legitimacy has been in use for nearly as long as the Republic, and has long been understood to be compatible with the right to keep and bear arms. The Supreme Court alluded to this in Heller, by suggesting laws banning concealed weapons were presumptively constitutional, but strongly hinted that the right to carry arms in some manner was constitutionally protected. So how should the courts deal with this seeming contradiction?
While many would no doubt favor a regime where open carry were constitutionally protected, with concealed carry deserving no such protection, I don’t see that open carry is really such a superior signal over a license. Open carry relies heavily on social custom, and in most areas of the United States today, social custom greatly restricts the situations where carrying a firearm is accepted.  Licensing of concealed carry doesn’t have the same dependencies on social custom, and, in fact, allows you to be less concerned about it, while still allowing the constabulary to quickly identify someone as law abiding or not. Obtaining a license is certainly burdensome, but so is mandating the carrying of arms openly.
I think construction of the Second Amendment right to bear arms, as separate from keeping them, shouldn’t remain focused on open vs. concealed, so much as accepting a legitimate governmental concern in discerning friend from foe when it comes to arms worn in public, leaving the mechanism largely up to the legislature. The legislature must allow some form of the bearing of arms for the purposes of self-defense, but accepting, as the Tennessee constitution says, the power to “regulate the wearing of arms with a view to prevent crime.”
There’s a lot of room for argument here, such as what regulations amount to the effective destruction of the right, and to what requirements amount to obstacles meant to discourage the exercise of the right right, rather than promoting the government’s legitimate interest in authenticating the signal. Is a license even the least burdensome method given vast databases that are now accessible by portable handheld computers? I think the courts should give legislatures a good deal of leeway for innovation on these issues, but should understand the interest as narrow, forcing the government to institute the least burdensome method for promoting its signaling interest between those carrying arms, and those charged with keeping the public peace.
UPDATE: Clayton Cramer has this peice to add to the conversation, which tells the story of how concealed carry restrictions came into place.
If you need a permission slip, it’s not a right.
I agree, but to what extent is a license a permission slip, or a certification suggesting that you’re not a criminal, and are law abiding? In New York City, or, say, Massachusetts, it’s most decidedly a permission slip. I’m not so sure about, say, New Hampshire.
Clearly you are correct that a “may issue” state entails a much more onerous form of “permission slip”, but so does anything that materially interferes with the exercise of a right and becomes entirely arbitrary if that interference cannot be shown to meet certain tests;
In order to be constitutional, laws infringing on rights must serve
narrowly defined “compelling state interests” and avoid unnecessary
infringement on individuals’ rights unless there is a direct and
provable connection between the individual and the interest served.
For there to be a compelling state interest, there must be:
1. A major problem;
2. Clear and direct proof the proposed restriction would significantly reduce that problem and on balance not cause greater problems; AND
3. any restriction must be NARROWLY tailored, in general this means the smallest possible restriction of rights and that the restriction must not apply to the law-abiding due to bad behavior of others, i.e., without due process; AND
4. clear evidence that no other method is available and that no restriction that was less burdensome on the populace would be effective.
None of the CDC, the National Academy of Sciences of Sciences, nor DoJ were able to find that ANY gun control to reduce VIOLENT CRIME, SUICIDE or ACCIDENTS in any significant manner.
This is literally true even for “reasonable sounding” proposals such as “training”, “licensing”, “background checks”, “safe storage” and every other regulation that has been investigated. There is no proof that even one of them works.
It is far easier to argue that (violent) felons should lose their 4th Amendment protections from search and seizure along with their RKBA rights than it is to argue that law-abiding citizens much prove their suitability.
Conversely, it is easy to show that any licensing law that requires a fee greater than necessary or training that has not been proven to reduce accidents or crime is an infringement — one test might be to compare this with fees for drivers licenses (although those are not a right) and the training requirements if any. In those cases it has been shown that training reduces accidents and automobile fatalities.
Clearly infringements that can not be shown to help are unconstitutional.
Along these lines, less than 100 criminals are prosecuted each year for Brady/NICS violations — and the vast majority of these are because the authorities needed to arrest or prosecute a criminal but can’t make the real charge stick, or as a “predicate felony” for a conspiracy or RICO charge.
Alaska, Vermont, and a host of states with unlicensed open carry do just fine, as do states such as Vermont with small shall issue fees and thus it is is quite clear that even shall issue states with large fees and training requirements have already crossed the permissible infringement threshold.
Any “may issue” state is certainly in violation of the US (if we presume incorporation as we must for any fundamental enumerated right) and most state Constitutions.
Perhaps the best “signal” would simply be a “holster law”. It’s legal if you can legally own the firearm and you wear it in a holster.
As silly as this may sound, at least one state (Georgia) does require the firearm to be holstered when worn. The theory is that criminals prefer to carry in a manner that allows immediate disposal of the firearm with no remaining empty holster to give away their action.
Criminals break the law anyway — let the police run a background check when a PROBLEM occurs. Arrest, prosecute, and imprison those who abuse their rights and the rights of others.
Leave the law-abiding alone, including eliminating the need for firearm dealers to become part of the policing of criminals who are seldom if ever prosecuted.
Just as a data point to consider, all those jillions of late-19th/early 20th Century teeny little top-break revolvers and Colt pocket autos weren’t made for buscadero rigs.
You don’t really need to convince me, Herb. But the Supreme Court seems to want to go in a different direction with the 2A. We’re stuck having to look for ways to maximize freedom in the framework bequeathed by Heller. I think there’s a lot of room there, but I would like to avoid going down the road of only open carry being protected, as that amounts to near destruction ofbthe right.
Here in the Soviet Socialist State of Minnesnowta, “open carry” has never been prohibited. In fact, it’s explicitly allowed. In reality, anyone who would actually dare to try it in the major metropolitan areas (Mpls/St. Paul, Duluth, Rochester) would find themselves very promptly in the back of a squad car, charged with “disturbing the peace” , “unruly behavior” or some such bogus charge.
We have extensive laws recently passed (about 7 years ago) mandating “shall issue” (MN Statute 624.714, aka, the “Personal Protection Act”). These laws not only require training, but also allow the local sheriff’s office to charge up to $100 for issuing the carry permit (not surprisingly, the major-counties sheriffs not-coincidentally charge exactly the maximum). An interesting tidbit is that the permit and laws do NOT mandate concealed carry only.
Is this an infringement on a right? Absolutely. The cost for training here in the major metropolitan areas runs about $150 to $200 per person. Add in the permit cost, and it’s around $250 to $300…and the permits need to be renewed every five (5) years. For someone on a tight budget this is an onerous extra burden. And it’s simply turned into another racket, with trainers and sheriff’s offices profiting from yet anther intrusive law. But it’s still almost infinitely better than what we had previously, where the sheriff had complete “discretion” over to whom they would issue a permit. That system was even MORE corrupt, with only the politically-connected and wealthy able to receive a permit.
About the only time you’ll see people openly carrying in Minnesnowta is during deer season. Orange-clad hunters are seen everywhere in rural areas, toting shotguns, rifles and pistols. What’s really fun is the PSH-reaction of the hoplophobes if they actually leave their urban enclaves and travel more than 30 miles outside the city. They uniformly shudder in shock, and routinely ask how many people die during deer season. The answer also surprises them, since the leading causes of death due to hunting are:
1. Falling out of tree stands, and
2. Heart attacks.
Heck, we even try to be subtle when carrying gun cases out to the car when we’re heading to the range…our neighbors here in the city freak out rather completely when they see a rifle case. But then, we live in an area that went 70% for Muhammed Ellison, and 70% for Obama.
I got lost towards the end. Open carry infringes upon what right?
A requirement to open carry is a regulation on the right to bear arms for self-defense. My argument, essentially, is that it’s actually a fairly severe restriction on the right, which will amount to near destruction in some jurisdictions. If Open Carry is permitted in, say, New York City, how many places will you really be able to go while carrying a firearm? How many places will prohibit them?
The Supreme Court has hinted in Heller that restrictions on concealed carry are constitutionally permissible, but I don’t think that should automatically mean open carry is the viable constitutional alternative, because “you can’t license a right.” I think open carry is actually more restrictive than having to get some form of license. Perhaps some of the licensing requirements are not constitutional, and perhaps technology is progressing to the point where a license can’t be required at all. But given the framework we have to work in, I think The Court has a lot of options in regards to how it protects the right to bear arms, as opposed to keep them.
How, exactly, does a peace officer know that one is carrying concealed, until he either asks or sees the weapon being pulled out? In the latter case, it may well be too late.
A concealed carry license just makes the general public ‘feel’ better about people carrying, as well as providing more income for the government. The bad guys never worry about permission.
Open carry indeed sends a signal – but unless one wears a badge or sign denoting him as a CCW licensee, I don’t see how there’s any signal being passed by individual concealed carry.
Quote from Sebastian:
“I agree, but to what extent is a license a permission slip, or a certification suggesting that you’re not a criminal, and are law abiding? In New York City, or, say, Massachusetts, it’s most decidedly a permission slip. I’m not so sure about, say, New Hampshire.”
If the government can say “no”, it’s a permission slip. Restricting the ability to carry en masse in the hopes that it will keep guns out of the hands of criminals is a logical fallacy. They will get them, and carry them anyway, because as has been said thousands of times, criminals don’t respect the law.
In a society where one is supposed to be innocent until proven guilty, a signal shouldn’t be necessary; it should be implied that a person is allowed to exercise their rights, unless they act in a way which would suggest otherwise. In addition, police are typically reactive, not proactive; they very rarely prevent crime, they respond to crimes which are already underway or have already taken place. And when reacting as such, there’s really no value in a signal, as the act of committing a crime becomes the signal.
Sebastian,
It seems you are arguing that the burden of proof has shifted and should stay shifted to the individual to prove they have a legitimate reason to exercise their rights.
I disagree. Fundamentally, shouldn’t everyone be treated as having a legitimate reason until proven otherwise?
The simplest signal, or proof, is their actions.
How about the lack of a criminal record as a signal?
As you stated, previously access to records and communications prohibited any quick dissemination of criminal status. Now that isn’t a factor.
If there is a reason to stop a person, then their identity is quickly established and verified. If they are a prohibited person, that information is known.
Heck, with facial recognition software even the lack of written documentation shouldn’t be a burden for the average citizen.
The burden of proof shouldn’t reside with the individual to show an acceptable reason to exercise their rights. Does a person with a camera need a press pass to take pictures?
I waited at the DMV for three hours on Monday, listening to a morbidly obese government employee insult people who were standing in line, as well as crying babies, to obtain my “social signal” that I am validly exercising my rights. No thanks.
Let men be judged by their actions, not by whether their gun is on their belt or in their pocket, or by a plastic card in their wallet.
Open carry indeed sends a signal – but unless one wears a badge or sign denoting him as a CCW licensee, I don’t see how there’s any signal being passed by individual concealed carry.
Open carry is a tactical disadvantage to concealed carry. The signal is a gentlemen will accept the tactical disadvantage in order to comply with the social custom.
In a society where one is supposed to be innocent until proven guilty, a signal shouldn’t be necessary; it should be implied that a person is allowed to exercise their rights, unless they act in a way which would suggest otherwise
I don’t disagree with you, but that’s not the framework that was suggested by The Supreme Court. The Court implied moving in a direction where some form of carry must be allowed, but that concealed carry could be considered a privilege. The trick, in that instance, is to find a framework that the courts that is in line with Heller, but still pretty broadly protects the right to carry a gun.
Interesting but incorrect (or at least incomplete) theory of the development of concealed carry prohibition. My book Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger Press, 1999) examines the motivations in great detail, from newspapers, court decisions, etc. See this article for a cutdown discussion.
I figured you’d have something good to say Clayton. I need to find a copy of that sometime and read it.
In Colorado, open carry is legal and unlicensed. Concealed carry requires a license with a fee.
In Texas, Open carry is illegal. Concealed carry with a license (and fee) is the only legal way to carry.
In Hawaii, open and concealed carry is legal with a license that you will not get.
Either open carry needs to be protected and unlicensed, or concealed carry does. So long as some method of carry is protected and fee or paperwork free, then the actual method is irrelevant. This should be something determined at the state level.
Rights are a simple matter. Requiring one to pay the government a fee or to carry a paper in order to exercise a right is an infringement.
Concealed and open each have their advantages and disadvantages. I open carry because my personal draw abilities and style favors open carry. I also find it more comfortable.
Blackwing1 – Talk to Gene German, who can be found as ccwtrainer on OpenCarry.org, who is a MN (among others) permit trainer and always openly carries in MN, and has for years; this includes major metropolitan areas.
We have a similar setup here in WI, where we are currently fighting for the recognition of our right to openly carry without illegal harassment by law enforcement personnel.
Fact #1
Your rights do not come from government
Question #1
What part of “shall not be infringed” are you unable to grasp?
Don’t look at me. I didn’t write the Heller opinion. Take it up with Scalia, Roberts, Alito, Kennedy and Thomas.
Open carry is the right, not concealed carry. The permit system in the states that allow CCW accommodates that theory.
Sorry Sebastian, I know you prefer CCW since it doesn’t scare the natives, but CCW is a permit not a right. Other rights don’t have permits to practice religion or speech or to create a blog to publish.
The convenience of a social signal does not erase a right.
Beside without the ability to get ID the police do not have signal unless it is from the tag of a car. A walker with concealed can be a criminal or law-abiding citizen and the cop cannot tell the difference. Or should we be chipped so police can know?
Wisconsin and other states restrict the ability to open carry with harassment. GA open Carry decision that carry a gun openly does not constitutes reason for a stop for ID or disorderly conduct will become the prevailing opinion.
West Alis in Wisconsin also recognized that. So the use of DO is becoming less a tool that police can use. We have to chip away on these infringements and clear thinking lawsuits are doing that.
You have the example of PA where the lawsuits of the Dixon group is costing the town enough that police are now being trained not to harass OC people.
That is the way to go. I approve of CCW but that has to be permitted through the legislative process.
Without CCW breaking the ice on social attitudes Heller may not have won. But still CCW has only a couple of decades of custom behind it so it is not that strong. Just on a popular upswing. May it continue on the trajectory. But now OC is getting more popular. And the conveniences are manifest, so I expect that popularity to continue. It is a shame my state is so reactionary that CCW and OC is not allowed except for special exemptions. So as a citizen that can’t do either I have an open mind about both methods of carry.
.Also, I would be careful about using signaling as justification that is just another word for need. That the police needs to know about the citizen for his protection since that is a priority. Bad road to go down, I can see that argument used for a RF chip implanted as a need to identify bad citizens and good citizens. If you get a conviction for a felony it is required you to be chipped. How many people would agree with that? Lots I bet. Then it changes to a misdemeanor or everything gets redefined to a felony as is happening now. Freedom lives best when ambiguity exists. At some time it is possible that we all may be considered criminals. All it takes are increases in stupid laws
Sorry Sebastian, I know you prefer CCW since it doesn’t scare the natives, but CCW is a permit not a right. Other rights don’t have permits to practice religion or speech or to create a blog to publish.
No, but you do need to get a permit to hold a demonstration of a certain size, even though there’s a right to free assembly. I’m not saying that works as an analogy for RKBA, but there is precedent for licensing a right in order to serve a governmental interest.