State Constitutional Language on Regulating Arms and Concealed Carry

In a previous post I highlighted the fact that 44 of 50 state constitutions contain language protecting the right to keep and bear arms (RKBA), often going beyond the federal constitutional language to make abundantly clear that the right is an individual one and not a collective right tied to militia service. Also, several states have only recently (in the past few decades) added to or amended their state constitutions to make this individual right clear.

It is also interesting to note, however, that 14 of these states also have additional constitutional language that specifically gives the state (especially the state legislature) the authority to regulate arms or the bearing of arms. (See note on Louisiana below, which used to be a 15^th state.)

Image courtesy of the North Carolina Office of Archives and History, Raleigh, NC.

The following table (in PDF format) shows the constitutional provisions of these 14 states, as contained in Eugene Volokh’s “State Constitutional Rights to Keep and Bear Arms” (11 Texas Rev. of Law & Politics 191 [2006]):

State Constitutional Restrictions on
Arms and Concealed Carry Table

Kentucky: The First Constitutional Provision on Concealed Carry

As the table shows, Kentucky was the first state to add constitutional language concerning concealed carry. Its original constitution from 1792 simply ready, “That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”  In 1850, that passage was amended to read: “That the rights of the citizens to bear arms in defense of themselves and the State shall not be questioned; but the General Assembly may pass laws to prevent persons from carrying concealed arms.”

As Clayton Cramer has documented in Concealed Weapon Laws of the Early Republic, Kentucky was also the first state in the nation to pass legislation banning the carrying of concealed weapons. On February 3, 1813, the general assembly of the commonwealth of Kentucky determined: “That any person in this commonwealth, who shall hereafter wear a pocket pistol, dirk, large knife, or sword in a cane, concealed as a weapon, unless when travelling on a journal, shall be fined in any sum, not less than one hundred dollars; which may be recovered in any court having jurisdiction of like sums, by action of debt, or on the presentation of a grand jury – and a prosecutor in such presentment shall not be necessary. One half of such fine shall be to the use of the informer, and the other to the use of the commonwealth” (Cramer, p 143).

The constitutional amendment because necessary when, in 1822, the Kentucky Supreme Court ruled the state’s concealed weapons ban unconstitutional. At its constitutional convention in 1849, the right to keep and bear arms provision was amended by a vote of 50 to 39. Other than a linguistic modification in 1891, this language remains in Kentucky’s state constitution. In 1996 the Kentucky legislature passed a “shall issue” concealed carry law.

Image from Dondero, Inc.

Spread of Constitutional Provisions Allowing Regulation of RKBA

After Kentucky, the next state to modify their constitution was Georgia, which in 1868 added the following to its RKBA language: “but the General Assembly shall have power to prescribe the manner in which arms may be borne.” Georgia was the first of a number of states to add language giving the state power to regulate wearing or concealing weapons during the period of reconstruction after the Civil War, including: Tennessee (1870), North Carolina (1875), Missouri (1875), Texas (1876), and extending the end date of reconstruction a couple of years, Louisiana (1879).

Several states included language allowing the possibility of regulating the carrying of (concealed) weapons in their founding constitutions:

• Colorado (1876): “but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.”

• Montana (1889): “…but nothing herein contained shall be held to permit the carrying of concealed weapons.”

• Idaho (1889): “…but the Legislature shall regulate the exercise of this right by law.”

• Utah (1896): “…but the legislature may regulate the exercise of this right by law.”

• Oklahoma (1907): “…but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.”

• New Mexico (1912): “…but nothing herein shall be held to permit the carrying of concealed weapons.”

During this same time period Florida (1885) and Mississippi (1890) amended their constitutions similarly.

Each of these states, with the exception of Louisiana, continues to have some variant of this language in their state constitutions. So, the 50 state constitutions break down as follows:

• 6 have no state constitutional protection of the RKBA,

• 14 have a state constitutional protection of the RKBA along with language claiming the authority to regulate that right (generally or in terms of concealed carry),

• 4 have a state constitutional protection of the RKBA with a militia clause like the federal constitution (but no concealed carry clause), and

• 26 have a state constitutional protection of the RKBA with no militia clause or qualifying language on the manner in which arms can be borne.

Graphic from NRA-ILA

Note on Louisiana

Louisiana amended its constitution in 2012 to change its RKBA provision in a manner that some believe give citizens the highest level of protection of their right to keep and bear arms. Louisiana’s original constitutional language, passed in 1879, read: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be abridged.  This shall not prevent the passage of laws to punish those who carry weapons concealed” (Art. 3).

In 1974, this article was amended, dropping the militia clause: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person” (Art. I, § 11).

And in 2012, the specific language regarding concealed carry laws was dropped, with a new clause requiring “strict scrutiny” added in its place: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny” (Art. I, § 11).

According to the NRA Institute for Legislative Action, “strict scrutiny” affords citizens the highest level of protection of their rights when courts decide whether restrictions are constitutional.