In an annoyingly reasonable piece, Kevin Williamson expresses skepticism toward the permitless-carry bill that Texas’s legislature is considering at present. For Texas to abolish its licensing system, Kevin concludes, would represent “a textbook example of a solution in search of a problem.”
I disagree. Indeed, I would cast the move in precisely the opposite terms: By my lights, the Texas legislature is considering preventing the heavy hand of government from regulating a problem that does not exist.
In making his case, Kevin suggests that there should be some room for difference between the 50 states — a topic on which we typically agree. In particular, he casts doubt on the legitimacy of the Supreme Court’s “incorporation” doctrine per se, and then notes correctly that Texas’s state constitution explicitly permits the legislature to “regulate the wearing of arms.” Acknowledging that being permitted to do something is not akin to being mandated to do something, Kevin goes on to make an argument from prudence, suggesting that asking people to obtain a permit and training before carrying a firearm does not represent an unreasonable burden — even if the statistics show that such a process does nothing of use. It is on this lattermost point that our main disagreement seems to turn.
Unlike Kevin, I do not believe that the incorporation doctrine, which applies the Bill of Rights to the states, is bunk. But I do believe that it was botched. As the contemporary debates make clear, the 14th Amendment was most certainly intended to guarantee to all citizens the rights that were “chiefly defined in the first eight amendments to the Constitution,” including the right to keep and bear arms — but this was supposed to be achieved not on vague “substantive due process” grounds, as it has been, but via the more direct language in the privileges-and-immunities clause. Were Texas to remove the right to keep and bear arms from its state constitution, and subsequently attempt to disarm the public, the federal courts would be well within their power to block the move — as, indeed, they have already done elsewhere in McDonald v. Chicago. It was true for a long time that states were unbound by the Bill of Rights, but it is not true now, and it is not true by design. After a certain point, states are hamstrung by the 14th Amendment, and they are supposed to be hamstrung by the 14th Amendment. Since 1868, the Bill of Rights has been a decidedly national concern.
Because Texas is not so much obliged to abandon its permitting system as it is, potentially, choosing to abandon its permitting system, this disagreement is somewhat incidental to our primary debate: Which is about the merits and demerits of Texas maintaining a permitting system for those who wish to carry concealed weapons. On this, Kevin says he is in “two minds.” I am not. I am in one. There is no evidence that concealed-carry permitting systems do anything much at all — let alone that they meet the justification laid out in Texas’s constitution, which is to reduce crime — and, when a government program does nothing useful, it should by rights be summarily abolished. At one point, permitless carry really was an innovation, the likely consequences of which were a mystery to one and all. But, as I write, we are approaching the point at which one half of the states have achieved abolition. As it was when it became the 45th state to adopt open carry, Texas is actually arriving somewhat late to this party — after such states as Vermont, Iowa, New Hampshire, West Virginia, and Utah. What will happen if it joins their ranks? We already know: nothing.
Among the specific worries Kevin has are that, absent state-mandated instruction, new carriers will not know how to use their guns, that they will not learn the rules governing where those guns may be carried, that they will not know how and in what circumstances they may be used, and that the lack of regulation may cause particular problems in Texas’s cities. At one point, to rest one’s skepticism upon such inquiries made perfect sense. But now? Each and every time the carry rules are loosened, we get a wave of predictions about the likely results. And, each and every time, nothing changes. We have a lot of permitless-carry states now, and yet we don’t see spikes in accidents, in trespassing, or in the random shooting of police officers by legal concealed carriers. Kevin draws a distinction, noting correctly that Texas “is not very much like Wyoming.” But one does not need to look that far afield. Taken together, the states that have abolished their permitting systems are sufficiently geographically and demographically diverse for us to have a good idea of what happens in a whole host of environments. Arizona has permitless carry. So do Missouri, Maine, Oklahoma, and Kentucky. Texas is a unique place. But it’s not that different.
More specifically, Kevin mentions Dallas and Houston as potential trouble spots. But it is important to remember that abolishing the permitting system does not change the eligibility rules, and nor does it allow criminals or the legally disqualified to do anything they were previously barred from doing. It simply removes the licensing process for already-eligible concealed carriers — a group which, statistics out of Texas and Florida have repeatedly shown, is up to six times more law-abiding than the police. We have many problems in this country with violence committed with firearms, but legal concealed carry is not among them, and, this being so, there is simply no good reason to interpose the government here. Kevin is, of course, correct to observe that Texas’s licensing system is far from draconian; for an example of a permitting system being abused, one should look instead to New York City. Nevertheless, Texas’s system is certainly more draconian than is having no system at all. Modest though they may be, the rules in Texas require citizens who wish to bear arms to expend their time and their resources before doing so, and add another layer of paperwork to everyday life. Sometimes, this is unavoidable. Here, it is not.
Ultimately, licensing is power. And, as Texans should know only too well, power can corrupt. In 1859, before the Civil War brought slavery to an end, the supreme court of Texas ruled that both the Second Amendment and its Texan equivalent protected an “absolute” right to keep and bear arms. “A law cannot be passed to infringe upon or impair it,” the court explained, “because it is above the law, and independent of the law-making power.” Twelve years later, the same court, containing some of the same members, and interpreting the same text, saw fit to uphold a Texas law that made it illegal for anyone in the state to carry “on or about his person, saddle, or in his saddle-bags, any pistol.” No court in Texas is likely to make such a determination today — and, if it did, thanks to incorporation, the Supreme Court would likely step in. But the incident should remind us nevertheless that a government that is charged with superintending our rights is a government that is able to limit those rights — and capriciously if need be. Absent a compelling interest for such superintendence, the smart move is to get the state out of the game completely, and, thereby, to remove completely the temptations its involvement invariably yields. If, this year, the government of Texas elects to do just that, it should be applauded, and not heckled, for the move.