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Carry At Your Own Risk

As CCWs proliferate, issues arise

By John Hay Rabb

Contrary to many earlier predictions, the right to carry a concealed handgun is spreading across the country like a prairie fire. There are now 33 states that have so-called "nondiscretionary" or "shall-issue" concealed carry weapons (CCW) permit laws. Another 11 states have "discretionary" CCW laws. The remaining six states and the District of Columbia are content, at least for now, to maintain their no-CCW-permit status.

While the citizens of nondiscretionary states may now enjoy seemingly unfettered rights to carry concealed handguns, they must also wrestle with some thorny but very important questions: Which areas are permitted and prohibited for concealed carry weapons? What constitutes justifiable use of a handgun for personal protection? May a handgun be used to protect other individuals? May it be used to protect property?

The task of addressing these issues is further complicated by the veritable crazy quilt of laws and court decisions governing handgun use in the individual nondiscretionary states. It is indeed discouraging to realize that, while a CCW permit may appear to solve a crucial personal-defense problem, in actuality the permit holder must be exceedingly careful to ensure that he does not find himself in serious legal jeopardy as a consequence of exercising his Second Amendment rights. While the Founding Fathers may have intended rights and responsibilities to go hand-in-hand, they could never have imagined the situation that exists today.

The first thorny issue slaps you right in the face the moment you walk out of the courthouse or police station with your new CCW permit. Where are you allowed to carry your concealed handgun? Where are you prohibited from carrying your gun? It helps to do a bit of research before actually carrying a concealed handgun. An excellent website for this purpose is gunlaws.com. Also, some jurisdictions provide a pamphlet or other information with the permit that may provide some guidance. Unfortunately, the law is unclear in many states, and other states have virtually no statutes--only court opinions--to provide guidance for CCW permit holders. Remember: Ignorance of the law is not a defense against arrest and prosecution for a crime, so know what you're getting into before you start packing heat.

Most nondiscretionary CCW states actually list the categories of prohibited areas in the body of the statute. The statute may also contain a provision that essentially states that clearly posted "No Firearms" areas shall also be considered prohibited areas for CCW purposes. The individual prohibited areas listed in the statute--such as courthouses, churches and schools--will most likely not be posted, so be sure to commit the prohibited-areas list to memory or keep a copy of the list with you. Otherwise, you may inadvertently find yourself an unwilling overnight guest of the local constable.

Fortunately, the prohibited areas listed in most state laws are logical and simple to remember. These areas generally include schools, courthouses, law enforcement facilities, correctional facilities, churches, airports and establishments where alcohol is served. The state with the most categories of prohibited areas listed in its statute is Texas, with 15. Oddly enough, Vermont only has two prohibited areas listed: state government facilities and schools. It's also interesting to note that the school gun prohibition applies only to students, not to adults who may be working at or visiting a school. In fact, Vermont does not even require a permit to carry a concealed handgun, yet Vermont is hardly known as a hotbed of gun-related violence. (How do the anti-gun zealots explain this apparent "Vermont paradox?")

All nondiscretionary CCW permit states allow private-property owners to prohibit the carrying of concealed handguns on their property. Most of these states, while they do not require no-firearms-allowed areas to be posted, recommend the practice in order to prevent any confusion or misunderstanding. If you carry a concealed handgun with a CCW permit into a clearly posted no-firearms area and the property owner becomes aware of it, you will most likely be arrested.

However, if you carry a concealed handgun with a CCW permit into a nonposted area where the owner does not want firearms and he becomes aware, you may simply be asked to leave. In extreme cases, the owner may call the police. In these cases, as a Maine State Trooper explained to me, the gun owner will not be arrested because the area was not posted and therefore no crime was committed.

The carrying of concealed handguns in motor vehicles presents special challenges for both gun owners and law enforcement personnel. In the case of a routine traffic stop, the officer may or may not be aware that the driver is a CCW permit holder. Some states electronically file CCW permit information with motor vehicle records, while others have no capability to provide officers with permit information about a motor vehicle operator.

Obviously, an officer executing a routine traffic stop would prefer to be informed as soon as possible by the driver that he has a concealed handgun and a permit. Where I live, in Fairfax County, Virginia, county police issue a pamphlet to every CCW permittee containing some useful information--delivered in overwrought prose--about how to behave when approached by an officer. "Listen!" the pamphlet says. "Obey all of the officer's commands. Keep your hands clearly visible. Make every movement slowly. Verbally inform the officer of the location of the weapon and permit. Wait for specific instructions, and comply as directed. Do not touch the weapon." The pamphlet also assures that "the officer does not intend to offend you." Not to worry. I'd probably be more petrified than "offended."

The most important question a CCW permittee must face is under what circumstances may he legally fire his weapon. May he use his gun to defend himself, his family, his friend, a stranger and/or his property? Must he retreat in the face of deadly threat, as some state laws require, or may he stand his ground and fight, as other state laws permit?

It's quite obvious that state laws and court precedents differ widely between the nondiscretionary CCW states. The application of these laws and precedents may also differ within an individual state. The net result is that a CCW permit holder could quickly find himself in physical and legal jeopardy, even if he is the innocent victim of a criminal attack.

In general, all nondiscretionary CCW states allow the CCW permit holder to use deadly force in defense of his own life. Some states, such as Arizona and Florida, do not require the CCW permit holder to retreat in the face of a deadly threat. Other states, such as Arkansas and Virginia, require the CCW permit holder to make every reasonable effort to retreat from the threat and to only use deadly force when escape is impossible. Most states allow a CCW permit holder to use his gun to protect the life of any individual against a deadly threat. However, the use of a gun is generally not permitted in defense of private property, unless it is done in the process of protecting human life.

The question of protecting human life against a deadly threat leads inevitably to a discussion of the grim roll call of mass murders that have horrified the world over the past few years: 1991, Killeen, TX; 1996, Dunblane, Scotland; 1996, Tasmania; 1996, Moses Lake, WA; 1997, Pearl, MS; 1998, Jonesboro, AR; 1998, Springfield, OR; and 1999, Littleton, CO. The recent school shootings in Grundy, Virginia, and eastern Germany are merely somber additions.

Mainstream media and the anti-gun organizations have historically blamed deaths on the existence of too many guns in the hands of too many people. But what if the opposite conclusion is correct? If there were more guns in the hands of properly trained CCW permit holders, perhaps even one life could have been saved. More likely, many lives could have been saved.

But even as a potential deterrent to these mass killings presents itself, other problems arise. For instance, current federal law prohibits loaded firearms in schools. In addition, most CCW permit states list schools as prohibited areas for concealed handguns. Other mass gatherings that would be attractive to potential killers are also listed as prohibited under many state CCW permit laws.

CCW permit holders must undergo background checks and weapons training, yet they're not trusted to carry guns where they might be most beneficial in the defense of others. A spokesman for the Jonesboro, Arkansas, prosecutor's office acknowledged that a CCW permit holder in Arkansas could legally "shoot the shooter" in a hypothetical Columbine-type scenario. However, he added, the CCW permit holder would probably still face some sort of charges for carrying a loaded weapon onto school grounds.

So while the movement for concealed carry rights continues to sweep across the country, our optimism must be tempered by the vexing questions that emerge in its wake. If, in this post-9/11 security environment, we expect CCW permit holders to act, in part, as an armed Neighborhood Watch for the nation, then we must take steps to dramatically reduce the physical and legal pitfalls that they face. CCW permit holders cannot afford to hesitate when a moment of crisis is at hand. Innocent lives may literally hang in the balance.

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