The Gun Guy
Debunking the Arguments against Constitutional Carry
Photo: @THINKSTOCK / Videodet
Rep. Jim Lucas (R-Seymour) introduced H.B. 1159 on Thursday, which would eliminate the requirement to have a License to Carry Handgun to lawfully carry a pistol in Indiana. If passed, Indiana would become the twelfth state to adopt Constitutional Carry, so named because proponents correctly argue that the U.S. Constitution already guarantees the right to bear arms. Thus, a license or permit should not be required to exercise a preexisting right. (As I noted in a previous article, a "license" is simply the process by which the government sells back to citizens a right they already had.)
This is the third session of the Indiana General Assembly in which Rep. Lucas has introduced his Constitutional Carry bill. The previous two bills died on the vine after Rep. Tom Dermody (R-LaPorte), past chairman of the House Public Policy Committee, refused to give them a hearing. This year, proponents are hopeful that the new Public Policy chairman, Rep. Ben Smaltz (R-Auburn), will allow H.B. 1159 to move forward for a vote.
As expected, this year’s iteration of Constitutional Carry is facing hostility from a number of sources. In voicing their opposition, however, gun control advocates and others have raised several arguments that simply don’t hold water. For example, the president of Indiana's chapter of Moms Demand Action for Gunsense in America has stated to the media that Constitutional Carry "defies common sense" and would "make it easier for dangerous people to carry hidden loaded handguns in public." Rev. Charles Harrison of the Ten Point Coalition has stated that "we already have a problem with the proliferation of unlawful guns on the street. [Constitutional Carry] will make it way easier for people who shouldn't have guns to get guns."
Importantly, this bill would have no effect whatsoever on who can obtain a firearm in Indiana. A person does not need a license or permit of any kind to purchase a gun in this state, including a handgun. A person also doesn’t need a License to Carry Handgun to possess a handgun on their own property, at a shooting range, in a firearms instructional course, and several other locations – including in their vehicle so long as the handgun is unloaded, not readily accessible and secured in a case.
Generally, a License to Carry Handgun is only required to carry a handgun in public or to have a loaded pistol accessible in a vehicle. The process of obtaining a License to Carry Handgun involves a simple background check to ensure that the applicant is a proper person to receive a license as defined by Indiana law.
In opposing Constitutional Carry in statements to the Indy Star, Marion County Prosecutor Terry Curry has stated that “permitting serves a legitimate purpose in terms of denying the right to carry a handgun to certain individuals." However, Rep. Lucas counters that “the Constitutional Carry bill only affects innocent, lawful people by removing this requirement to pay and prove one’s innocence. If a person is prohibited from carrying a handgun [now], they will still be prohibited from carrying a handgun after the law passes.”
So the question becomes – who is correct? Is it true that dangerous people will be able to lawfully carry guns in public and that Constitutional Carry “will make it way easier" for people who shouldn't have guns to lawfully carry guns? To answer that question, it is critical to understand that several classes of people are prohibited from possessing a gun at all under state and federal law. Whether those people, known as “prohibited possessors,” have a License to Carry Handgun is irrelevant to the fact that they can be prosecuted for several different felonies simply for possessing a gun – whether at home, in public or in a vehicle. For example, a person with a felony conviction on his record who is found in possession of any firearm, anywhere, is subject to criminal conviction and a prison sentence of up to ten years for a first offense, and many more years for "armed career criminals" found in possession of a gun. For this exact reason, it is simply incorrect that serious “criminals” will be able to lawfully carry a handgun if Constitutional Carry passes.
The real issues in addressing the validity of arguments made in opposition to Constitutional Carry are these: does Indiana’s current requirement of a License to Carry Handgun prevent anyone who is not already a prohibited possessor from carrying a handgun? And if so, does Indiana’s interest in attempting to prevent those people from carrying a handgun through a licensing requirement justify the current burden on innocent, law-abiding Indiana citizens to prove their innocence, pay a fee and go through the administrative process of obtaining a license? The answer to those questions is revealed through a comparison of Indiana’s definition of a proper person (who is eligible to obtain a License to Carry Handgun) with the Indiana and federal definitions of prohibited persons who may not possess a gun at all.
Indiana’s definition of a proper person to obtain a License to Carry Handgun includes twelve different disqualifications that will prevent that person from being issued a license by the Indiana State Police. Most of those disqualifications (but not all) are identical to state or federal definitions of prohibited possessors that already prohibit a person from possessing a gun. Let’s examine each of them.
A proper person (to obtain a License to Carry Handgun) “does not have a conviction for resisting law enforcement under IC 35-44.1-3-1 within five (5) years before the person applies for a license or permit under this chapter.” Indiana law provides that the crime of “resisting law enforcement” may either be a felony or a misdemeanor – generally depending on whether the person uses a vehicle or a weapon or injures a police officer while resisting. A person convicted of felony “resisting” is prevented by Indiana and federal law from possessing a gun at all. A person convicted of misdemeanor “resisting’ is not a “prohibited possessor,” but that person is only precluded from obtaining a License to Carry Handgun for five years from the date of the conviction.
A proper person “does not have a conviction for a crime for which the person could have been sentenced for more than one (1) year. Federal law specifically precludes anyone with a felony conviction – otherwise known as a “crime for which the person could have been sentenced for more than one year” – from possessing a gun. This prohibition alone precludes the vast majority of dangerous criminals from possessing a gun.
A proper person “does not have a conviction for a crime of domestic violence (as defined in ic 35-31.5-2-78), unless a court has restored the person's right to possess a firearm under ic 35-47-4-7.” Both Indiana and federal law prohibit a person convicted of a crime of domestic violence from possessing a gun – even if that conviction was only a misdemeanor.
A proper person “is not prohibited by a court order from possessing a handgun.” By definition, anyone possessing a firearm in violation of a court order is subject to arrest and incarceration for contempt of court for violating the court’s order. In addition, federal law prohibits a person from possessing a firearm if that person is subject to an order of protection (restraining order) that protects a domestic partner or that partner’s child.
A proper person “does not have a record of being an alcohol or drug abuser as defined in this chapter.” Many, but not all, alcohol and drug-related offenses are felonies (including a second Operating While Intoxicated conviction within five years). As stated above, any felony conviction disqualifies a person from possessing a gun. A person with only misdemeanor convictions for alcohol or drug-related offenses is not necessarily a prohibited possessor, but that person is only precluded from obtaining a License to Carry Handgun for three years (for alcohol offenses) or five years (for drug offenses) from the date of the latest conviction.
A proper person “does not have documented evidence which would give rise to a reasonable belief that the person has a propensity for violent or emotionally unstable conduct.” A person who has not been convicted of any crime and has not been adjudged by a court to be mentally incompetent is not a prohibited possessor; however, Indiana law specifically allows for the seizure of firearms from any person determined to be dangerous, and the definition of “dangerous” in the applicable statute incorporates the exact language, “documented evidence which would give rise to a reasonable belief that the person has a propensity for violent or emotionally unstable conduct,” as the disqualification in the definition of a proper person to obtain a License to Carry Handgun. Thus, a person who would be denied a license under this disqualification would also subject to having all their firearms seized involuntarily.
A proper person “does not make a false statement of material fact on the person's application.” In Indiana, making a false statement of material fact on an application for a License to Carry Handgun is a felony – and (as stated) anyone convicted of a felony is a prohibited possessor.
A proper person “does not have a conviction for any crime involving an inability to safely handle a handgun.” Under Indiana law, a person who “creates a substantial risk of bodily injury to another person” with a firearm commits Criminal Recklessness with a Deadly Weapon—a felony.
A proper person “does not have a conviction for violation of the provisions of this article within five (5) years of the person's application.” Carrying a handgun without a license in Indiana is a felony if the person has a recent felony conviction or if the crime occurs on school property. Otherwise, carrying a handgun without a license is only a misdemeanor, which would not make a person a prohibited possessor; however, such a conviction would also not permanently disqualify a person from obtaining a License to Carry Handgun – the person would again be eligible for such a license five years after the conviction. Another common “conviction for a violation of the provisions of this article” is making a false statement of material fact on a person’s application for a license, which (as discussed above) is a felony.
A proper person “does not have an adjudication as a delinquent child for an act that would be a felony if committed by an adult, if the person applying for a license or permit under this chapter is less than twenty-three (23) years of age.” Unless a juvenile is prosecuted as an adult and found guilty of a felony, an adjudication that the child is delinquent does not itself make that juvenile a “prohibited possessor.” However, both Indiana and federal law restrict the possession of firearms by juveniles – and the transfer of firearms to juveniles – anyway. In addition, an adjudication of delinquency is only a disqualification from obtaining a License to Carry Handgun until the person reaches the age of twenty-three. And, as noted earlier, Indiana law allows for the seizure of firearms from any person determined to be dangerous, including a delinquent juvenile.
A proper person “has not been involuntarily committed, other than a temporary commitment for observation or evaluation, to a mental institution by a court, board, commission, or other lawful authority.” In addition, a proper person “has not been the subject of a . . . ninety (90) day commitment . . . [or a] regular commitment,” and “has not been found by a court to be mentally incompetent, including being found . . . not guilty by reason of insanity . . . guilty but mentally ill . . . [or] incompetent to stand trial.” All of these disqualifications fall within current federal law that makes a person a prohibited possessor if that person has been “adjudicated as a mental defective or who has been admitted to a mental institution.” Separately, Indiana’s dangerous persons statute allows for seizure of firearms from persons determined to be dangerously mentally ill.
Separate from the definition of “proper person,” Indiana law also disqualifies a person from obtaining a License to Carry Handgun if the person “has been arrested for a Class A or Class B felony for an offense committed before July 1, 2014, for a Level 1, Level 2, Level 3, or Level 4 felony for an offense committed after June 30, 2014, or any other felony that was committed while armed with a deadly weapon or that involved the use of violence, if a court has found probable cause to believe that the person committed the offense charged.” While not identical, this disqualification closely mirrors the provision of federal law that makes a person a prohibited possessor if the person is “under indictment for a crime punishable by imprisonment for a term exceeding one year.”
The only logical conclusion from this analysis is that the vast majority of persons who are ineligible to receive a License to Carry Handgun are also prohibited persons under Indiana law, federal law, or both, which subjects any such individual to arrest and prosecution for merely possessing a firearm. In addition, Indiana courts have broad discretion to seize guns from any individual determined to be dangerous. For these reasons, it becomes abundantly clear that Indiana’s current requirement of a License to Carry Handgun is an unnecessary burden on law-abiding citizens that does virtually nothing to prevent criminals or other dangerous persons from carrying a gun. Both Indiana and federal laws provide multiple options for law enforcement and the courts to punish actual criminals found in possession of a handgun or remove firearms from the possession of dangerous individuals. And if a person is undeterred from possessing a gun when doing so is a felony – it is a virtual certainty that that person won’t think twice about committing a mere misdemeanor by carrying a handgun without a license.
Let’s hope Rep. Smaltz and the Republican leadership in the Indiana General Assembly recognize the logic behind Rep.. Lucas’ Constitutional Carry bill, reject the misguided arguments against it, and allow H.B. 1599 to move forward toward passage in both houses and signature by incoming Governor Holcomb.