This session, one of the hottest debates on Goat Hill is whether Alabama should pass “constitutional carry,” which would allow the people of Alabama to carry concealed weapons without getting a license from the government first.
As our legislators debate this issue, they need to consider one critical point: the Alabama Constitution probably protects the people’s right to carry without a permit.
Before unpacking this argument, here’s my recommendation to the legislature: While you’re in session, take the opportunity to pass a bill that (1) complies with the Alabama Constitution and (2) ensures that our law-enforcement officers have the funds they need if they stop charging for permits. If you do not, then you’re asking for a lawsuit that will invalidate much of our current concealed-carry scheme and will leave our Sheriff’s departments trying to figure out how to make up the difference.
Here's the analysis.
Article I, Section 26 of the Alabama Constitution protects the right to keep and bear arms. Prior to 2014, the key language of Article I, Section 26, was nearly identical to the Second Amendment to the U.S. Constitution. Over the last 14 years, the U.S. Supreme Court has been wrestling with what the Second Amendment means. It held in District of Columbia v. Heller that the Second Amendment protects the individual right to possess and carry firearms in case of confrontation with another person. And in 2010, the Court held again in McDonald v. City of Chicago that the Second Amendment applies to the States. So after Heller and McDonald, we know that Alabama has to protect the people’s right to bear arms in case of confrontation with another person.
Now, one might argue that those are basic rules subject to “reasonable limitations.” Could one of those be getting a permit in a shall-issue state for a small fee? If the federal and state constitutions said only that the people had the right to keep and bear arms, then you might have a case.
But in 2014, Alabama changed its state constitution to say more.
Amendment 888 changed Article I, Section 26(a) of the Alabama Constitution to read, “Every citizen has a fundamental right to bear arms in defense of himself or herself and the state. Any restriction on this right shall be subject to strict scrutiny.”
What does “strict scrutiny” mean? In constitutional law, “strict scrutiny” is the toughest legal test to satisfy if a law is challenged on constitutional grounds. To satisfy the strict scrutiny test, (1) the government bears the burden of proving that (2) the law serves a compelling state interest and that (3) the government has chosen the least restrictive means of achieving that interest.
In plain English, for starters, this means that any restriction on the right to bear arms is presumptively unconstitutional. To justify the current permit scheme, the state will likely argue that it has a compelling interest – the protection of human life. But assuming it’s that simple, the problem then becomes whether it can prove that this is the least restrictive means of achieving that interest.
In a lawsuit, the government would have to argue with a straight face that there is no other way to protect human life than to make every Alabama citizen, most of whom are law-abiding, get a permit before carrying.
If that’s the case, then why have over 20 states adopted constitutional carry? If making everyone get a permit was the only way to keep everyone safe, then those states should have descended into apocalyptic nightmares by now. But they haven’t.
The state would have to make the same kind of argument to justify forcing everyone to get permits before they bring their guns in their vehicles. But given that 20 states have already done away with those requirements and the roads haven’t turned into a scene from Mad Max, we probably don’t need to be that restrictive.
I could go on, but you get the point. The Alabama Constitution would probably require much of our current scheme to be invalidated.
I was asked last fall if the Alabama Center for Law and Liberty would take up such a case under the Alabama Constitution. I held off then for one reason: law enforcement relies on the money it makes from the permit schemes. It shouldn’t be that way, but I wanted to wait until the legislature was in session so that it could ensure that our sheriffs have the funding they need if the permit scheme went away.
Now’s your chance to protect civil liberties and ensure that the sheriffs aren’t defunded in the process. Taking that opportunity will not only serve the public good, but it will score you points with your constituents.
Let’s do this the easy way: pass constitutional carry now and ensure that the sheriffs have the funds they need to keep operating. If you don’t, then it’s only a matter of time before a lawsuit forces the issue and the government loses.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.