Nebraska Defeats A Filibuster For Shall Issue Law

[Annie]

http://volokh.com/archives/archive_2006_03_26-2006_04_01.shtml#1143873304

[David Kopel, April 1, 2006 at 1:35am]

Nebraska is 40th state to enact Shall Issue licenses for defensive handgun carrying:

Yesterday the Nebraska legislature defeated a filibuster, and passed a Shall Issue law for licensing the carrying of concealed handguns by adults who pass a background check and a safety class. Nebraska's governor has said he will sign the bill into law.

The law does not preempt Omaha's ban on concealed carry; in this regard, the Nebraska law is like Pennsylvania's 1989 Shall Issue law, which allowed Philadelphia to refuse to issue permits to qualified citizens. Later, the statewide success of the Pennsylvania law convinced the legislature to eliminate the Philadelphia loophole. Omaha's loophole will probably be eliminated sometime within a decade.

Here is the nationwide status of the law regarding carrying of concealed handguns for lawful defense:

40 states generally allow such carrying:

No permit needed. 2 states do not require a permit for any adult who is legally allowed to possess a firearm. These are Alaska and Vermont. These states will issue a permit, however, upon application. (See discussion of “reciprocity,” below, for why a person would want a permit.)

"Do Issue." 3 states have statutes which reserve some discretion to the issuing law enforcement agency. These are Alabama, Connecticut, and Iowa. In these states, local law enforcement will generally issue a permit to the same kinds of persons who would qualify for a permit in a Shall Issue state.

"Shall Issue." 35 states, including all states not listed elsewhere. Nebraska (this week) and Kansas (last week) are the most recent states to join this list.

10 states generally do not allow such carrying.

"No Issue." Illinois and Wisconsin have no process for issuing concealed carry permits. Illinois allows certain persons (e.g., law enforcement, security guards) to carry without a permit. By a decision of the Wisconsin Supreme Court, no permit is needed for concealed carry in one's home or place of business. (See my Albany Law Review article for discussion of the Wisconsin and Rhode Island cases.)

"Capricious Issue." 8 coastal states give local law enforcement almost unlimited discretion to issue permits, and permits are rarely issued in most jurisdictions, except to celebrities or other influentials. These states are Hawaii, California, Delaware, Maryland, New Jersey, New York, Massachusetts, and Rhode Island.

The future:

The Wisconsin legislature has twice come within one or two votes of over-riding the Governor's veto of a Shall Issue law. In every state where Shall Issue laws have been blocked by a veto, a Shall Issue law has eventually been enacted. It seems reasonable to predict that Wisconsin will one day become a Shall Issue state.

Rhode Island actually has a Shall Issue law (for issuance by local law enforcement) and a Capricious Issue law (for issue by the Attorney General). The Attorney General has succeeded, at least temporarily, in stifling the local Shall Issue system, but a decision of the Rhode Island Supreme Court suggests that this state of affairs is untenable. All that is necessary to implement Shall Issue in Rhode Island is a new Attorney General with a different attitude, or the proper legal challenge. Rhode Island too seems a likely candidate to become a Shall Issue state.

The Delaware legislature is currently considering a Shall Issue law, and proponents seem optimistic. I suggest that Delaware's politics are, on the whole, more similar to the normal pattern of the 40 issuing states than to the 9 other hold-outs. I expect Delaware to enact a Shall Issue law, perhaps this year, or within the next several years.

Of the remaining seven hold-outs, three states (New York, Illinois, and California) have previously passed a Shall Issue bill through a single house of the legislature. The passage suggests that Shall Issue, although hardly easy to enact into law, might be accomplished. In all seven of the final hold-out states, it would appear almost impossible to pass a Shall Issue law by a wide enough margin to over-ride a veto.

The pattern in almost all the states with Shall Issue laws has gone something like this: Initial discussions follow a predictable pattern, with proponents promising reductions in the crime rate, and opponents warning of Wild West shootouts. John Lott is discussed, pro and con, in infinite detail.

Over time, the personal testimony of female Shall Issue advocates sways some legislators. Other legislators, looking at the experience of other states, conclude that Shall Issue is, at the least, harmless; the lurid and sweeping predictions of opponents have not come true anywhere. The more states that enact Shall Issue laws, the more that legislators in a hold-out states become open to the idea that Shall Issue is not dangerous. Ohio, Minnesota, and Michigan are examples of states which are not considered strongly pro-gun, and whose enactment of Shall Issue legislation was possible only because so many other states had acted previously. As the number of Shall Issue states rises, so does the possibility of enacting Shall Issue in the dwindling number of hold-outs.

As momentum builds in a given state, the bill eventually attracts the support of all or almost all Republican legislators, and of almost all Democrats with a C rating or higher from the National Rifle Association. Many of the swing votes (the C-rated legislators, who say that they are pro-Second Amendment, but who often vote for gun control laws) are attracted by the objective standards of the Shall Issue system--which, unlike the Capricious Issue system--forbids gun carrying in certain places (e.g., hospitals), sets objective standards about who may not receive a permit (persons with various disqualifying conditions), and (in most states) requires a specific amount of firearms safety training.

Interestingly, Congress passed the Brady Bill 5-government-working-day waiting period for handgun purchases when there were only 22 states that had any kind of waiting period (and in many of those states, the wait was shorter than the Brady wait). As the number of states which regularly issue carry permits climbs into the 40s, the correlation of forces in Congress in favor of a national carry law also increases.

Brady passed in part because it was a "free" vote for some legislators. A legislator from, say, California, who usually but not always supported gun-owners could vote for Brady (earning praise from most of the media) while at the same time doing nothing that interfered directly with the gun purchase rights of his own constituents (since California already had a 15 day waiting period).

Conversely, a legislator from, say, Ohio, who usually but not always supports gun control, can now cast a "free" vote for a national carry law; he can curry some favor with pro-gun interests, while doing nothing to weaken the gun controls in effect in Ohio (which already has a Shall Issue law).

I am not arguing for or against the merits of a national Shall Issue law—merely commenting on the political realities.

For many decades, every state has recognized driver’s licenses issued by any other states. For concealed handgun licenses, the trend is clearly in that direction. As detailed by packing.org, today a permit issued by one state can be used in 28 states, through the principle of “reciprocity.” The new Kansas law will have reciprocity, while the Nebraska law does not. (Often, states with no reciprocity or weak reciprocity add a broader reciprocity provision several years after the enactment of the Shall Issue law.) A number of other states (e.g., Maine, N.H., Conn., Washington, Nevada), although having no reciprocity or limited reciprocity, issue their own permits to non-residents. (Nevada, however, requires that the training be conducted in Nevada.)

The continuing expansion of reciprocity also adds strength to the movement towards a federal Shall Issue law.

Significantly, Congress has also created the precedent, by enacting legislation which allows police officers and retired police from any state, after following certain procedures, to carry firearms in all fifty states.

In addition, I suggest that one day within the next 20 years, Congress and the President will decide that it is anomolous that residents of the District of Columbia are denied the defensive handgun carry rights which are enjoyed by the residents of all (or nearly all) 50 states; Congress will use its authority to legislate for the District of Columbia and will enact a Shall Issue system for residents of the District.

The modern trends towards Shall Issue was started when Florida became a Shall Issue state in 1988; previous Shall Issue bills had been vetoed by Governor Graham, but Governor Martinez signed the bill. The bill was the project of Marion Hammer, the head of Unified Sportsmen of Florida, who later served as President of the National Rifle Association. A few states (such as Washington and the Dakotas) already had Shall Issue laws, but the Florida law was the one that began a national movement.

Hammer was also the prime mover of the NRA’s Eddie Eagle gun safety program, in which a costumed character (similar to Smokey the Bear) teaches young children that they should only be around guns if there is a responsible adult present; if a children find an unattended gun, they should “Stop! Don’t touch! Leave the area! Tell an adult!” The Eddie Eagle program has now been taught to millions of children nationwide.

Hammer’s latest Florida success is Stand Your Ground legislation, affirming that victims of a violent felony do not need to retreat (even in a public area) before using forceful self-defense. As with Shall Issue, there are already some states, such as Utah, with strong protections of self-defense rights, but the 2005 Florida law may begin a national trend in which, every year, a few more states enact Stand Your Ground laws. Indiana and South Dakota enacted Stand Your Ground laws this year, and Georgia and Alabama may also do so soon.