By: Jordan Hagness
In response to calls for increased gun control, there has been a countervailing movement of red states enacting bills that have been referred to as “constitutional carry” or “permitless carry” bills. Today, some have asserted that as many as 29 states are “constitutional carry” states; however, each state has a unique statutory code, and some are not as protective as the title “constitutional carry” suggests. As a law school extern working with the Tennessee Firearms Association, I was assigned the project to evaluate whether these 29 states have true constitutional carry.
I first discovered this nation-wide push for permitless carry bills back in 2021 when I was researching states to move to for law school. After purchasing my first handgun the summer before in celebration of turning 21 years old and obtaining my concealed carry license, I found myself suddenly invested in which states had license reciprocity with my home state and which had constitutional carry and/or permitless carry. One of the factors I weighed in deciding which law school to attend was its state’s gun-friendliness.
As a young woman moving away from home, having the ability to concealed carry a handgun was something I considered essential to maintaining personal safety. Tennessee looked like my destination for law school; but before I was willing to commit to living there for the next three years, I wanted to know whether I would be able to carry my handgun. At the time, I still did not know how to read a state’s statutory code or even where to find it, so I did what anyone would do: I Googled Tennessee’s handgun carry laws. To my excitement, I found numerous articles reporting that Tennessee had recently passed a permitless carry bill supported by the Governor and that the bill was on its way to be signed into law. I moved to Tennessee and spent my first two years in law school under the impression that permitless carry was essentially constitutional carry and that carrying a handgun in public was not a crime in Tennessee. Only after starting my externship with the Tennessee Firearms Association did I learn that permitless carry for handguns in Tennessee is merely an exception to a broad criminal offense making it a crime to carry a firearm “with the intent to go armed” anywhere and at any time while in the state, including within one’s home. Tennessee Code Annotated § 39-17-1307(a)(1).
One of the first tasks assigned to me as a summer extern by John Harris, the Tennessee Firearms Association’s executive director, was to read and outline the United States Supreme Court’s 2022 decision in Bruen as well as the Court’s prior opinions in Heller and McDonald. From that project, I came to understand that the Second Amendment’s language protects a pre-existing right to keep and bear arms and that it is incredibly broad, encompassing both the right to personal self-defense and the right to have arms should the individual be summoned for service in the militia. Any legal system that claims to protect “constitutional carry” for its residents must be similarly broad and free from constitutionally prohibited infringements or restrictions.
For purposes of reviewing the spectrum of statutory schemes, “constitutional carry” must first be defined. A state has true constitutional carry if it does not criminalize the carrying of firearms in private or in public by those who may lawfully possess firearms. True constitutional carry encompasses both open and concealed carry, and it applies to both handguns and long guns (rifles and shotguns). For example, if a state allows the carrying of rifles but requires a license to carry handguns in public, then it does not have or protect true constitutional carry.
After spending my summer externship immersed in Second Amendment jurisprudence, I continued my externship with the Tennessee Firearms Association into the fall semester and was tasked with producing a comprehensive study of the 29 states which are alleged to have “constitutional carry” status. The study revealed that at least half of these states still criminalize either concealed carry, open carry, or both, and rely on exceptions or defenses to the criminal offense to provide residents any means of carrying a firearm.
What is the problem with relying on an exception or defense to a crime when it comes to the right to keep and bear arms? If the statutory code—the governing law codified by the state’s legislature—uses an exception or defense to allow citizens to carry firearms for self-defense, either in private or in public, then carrying a firearm remains a crime on the books. This allows law enforcement officers to have probable cause to believe a crime has been or is being committed upon observing someone in possession of a firearm. When there is probable cause, officers have the authority to stop, detain, question, and even cite or arrest the individual in possession of the firearm.
Furthermore, the study revealed that even where the statutory language carves out exceptions to the criminal offense of carrying a firearm, most of these jurisdictions place the burden of proof on the defendant. That is, the defendant (the individual carrying the firearm, in this case), not the state, must prove he met the requirements of the exception. The result: you may still be detained for carrying a firearm in the proscribed manner or location, and potentially even charged with a crime, even if the governing law in your state creates exceptions or defenses for individuals who may lawfully possess a firearm or license holders; and it is up to you, the defendant, to demonstrate to the court that the exception to the criminal offense applies. While an exception or defense creates a carveout under which a citizen may carry, he is still carrying in a manner that is classified as a criminal offense. To criminalize the carrying of firearms and place the legal burden on the citizen to prove he is carrying consistent with the statutory defense elements is simply incompatible with true constitutional carry.
It is important to note that a license or permit to carry a firearm, whether for concealed or open carry, is usually classified as an affirmative defense, meaning that a license to carry still places the legal burden on the defendant rather than on the state at trial. Tennessee is an example of this kind of statutory scheme. The handgun permit in Tennessee is expressly classified as one of the available defenses in Tennessee Code Annotated § 39-17-1308; therefore, in Tennessee, the burden is on the permit carrier to prove to a law enforcement officer or a jury that his conduct satisfies the elements of the defense.
My research found that as of 2024, the following states have been held out by online articles as having “constitutional carry” for their residents: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, West Virginia, and Wyoming. After a comprehensive study of these 29 states, however, at most 13 (possibly 14) states were determined to have true constitutional carry as defined above.
The purpose of this study on the 29 states was to ascertain which have true constitutional carry and which merely implement exceptions or defenses to a prohibition on the public carrying of firearms. After surveying the gun laws of each of these states, the states were categorized by 5 classifications:
(1) True constitutional carry;
(2) Constitutional carry only for handguns;
(3) Constitutional carry only for openly carried firearms;
(4) Criminal offense subject to a defense only for handguns; and
(5) Criminal offense subject to defense for any firearm.
In further detail, the classifications are as follows:
- True constitutional carry: there are no prohibitions on either the open or concealed carry of any firearm.
- Constitutional carry only for handguns: handguns may be carried openly or concealed; however, long guns are still restricted or prohibited.
- Constitutional carry only for openly carried firearms: individuals may open carry both handguns and long guns in public but may not concealed carry firearms.
Many of the states that fall within this classification do provide exceptions or defenses for concealed carry; however, these carveouts do not establish true constitutional carry because the criminal offense remains on the books.
- Criminal offense subject to a defense only for handguns: it is a criminal offense to carry firearms in public, openly or concealed, but there is an exception or defense available for handguns. Long guns remain prohibited without an exception or defense.
- Criminal offense subject to defense for any firearm: it is a criminal offense to carry firearms in public, openly or concealed, but there are exceptions or defenses available for any firearm.
If a state outright prohibits the open carry of firearms in public without exception or defense, then it is classified with a “0” even if it allows concealed carry. Florida, for instance, was classified with a “0” because there is no permissible open carry for private citizens.
For each state in the study, the first step was locating the statutory provisions addressing the carrying of firearms. The majority of the surveyed states situated their firearm regulations within the criminal offense titles or chapters of their respective codes; however, several states addressed the carrying of firearms within statutes on public health and safety. Where permitless carry is created through an exception to a criminal offense, the study reviewed the state’s rules on burden of proof and relevant case law on how exceptions are treated by courts.
Legend:
| # | Classification |
| 1 | True Constitutional Carry |
| 2 | True Constitutional Carry, Handguns only |
| 3 | Constitutional Carry, Open Carry Only |
| 4 | Criminal Offense (Handgun Only) Subject to a Defense |
| 5 | Criminal Offense (Any Firearm) Subject to a Defense |
Findings:
| States | Classification | Controlling Statute(s) |
| Alabama | *1* or 3 | § 13A-11-73 (repealed); § 13A-11-74.1; § 13A-11-50; § 13A-11-75. |
| Alaska | 1 | § 11.61.220(a)(6) |
| Arizona | 1 | § 13-3102; § 13-3112 |
| Arkansas | 1 | § 5-73-120; § 5-73-329 |
| Florida | 0 | § 790.01; § 790.053 |
| Georgia | 5 | § 16-11-126; § 16-11-125.1; 16-11-137 |
| Idaho | 3 | § 18-3302 |
| Indiana | 0 or 4 | § 35-47-2-1; § 35-47-2-1.5; § 35-47-2-3 |
| Iowa | 1 | § 724.5 |
| Kansas | 1 | § 21-6302; § 75-7c03 |
| Kentucky | 3 | § 527.020; § 237.109; § 500.070 |
| Louisiana | 3 | § 95 (Part VI, Subpart A, Chapter 1) |
| Maine | 3 | 25 § 2001-A |
| Mississippi | 3 | § 93-37-1; § 45-9-101 |
| Missouri | 1 | § 571.030; § 571.037 (note: not an open carry provision) |
| Montana | 3 | § 45-8-316; § 45-3-111 |
| Nebraska | 1 | § 28-1202.01;§ 28.1202; § 69-2430; § 69-2433; § 37-522. |
| New Hampshire | 1 | § 159:6 |
| North Dakota | 4 | § 62.1-03-01; § 62.1-04-02; |
| Ohio | 2 or 3 | § 2923.111; § 2923.12 |
| Oklahoma | 5 | § 21-1272; 21-1290.4; § 21-1289.6 |
| South Carolina | 1 | § 16-23-20; § 23-31-215 |
| South Dakota | 1 | § 23-7-7 |
| Tennessee | 5 | § 39-17-1307 |
| Texas | 1 | § 46.02; § 2.02 |
| Utah | 5 | § 75-10-504; § 75-10-505; § 76-10-523(5) |
| Vermont | 1 | § 4003; § 4007; § 4008 |
| West Virginia | 1 | § 61-7-7; § 61-7-3; § 20-2-5 |
| Wyoming | 3 | § 6-8-104; § 6-8-401; § 6-8-405. |
Ultimately, the study concluded that Tennessee does not have constitutional carry. Tennessee’s statutory scheme is classified as a “5” because it makes carrying any firearm “with the intent to go armed” a criminal offense, whether in public or private, and relies on a permitless carry exception and permit defense to allow residents to carry handguns. Tennessee Code Annotated § 39-17-1307(a)(1). There is a gap, however, between the permitless carry exception in Tennessee Code Annotated § 39-17-1307(g) and the broad criminal offense in Tennessee Code Annotated § 39-17-1307(a)(1): the permitless carry exception only applies to handguns and leaves long guns subject to the criminal offense without exception or defense. Tennessee Code Annotated § 39-17-1307(g) creates an exception for a person carrying a handgun openly or concealed if the person is at least 21 years old (or 18 years old if the person is in the military), lawfully in possession of the handgun, and in a place where the person is lawfully present. There is no permitless carry exception for rifles and shotguns.
Consider another example. Ohio’s carry laws may be classified as either a “2” or “3” depending on whether the carveout for a “qualifying adult” is treated as an affirmative defense. Under Ohio Title 29 § 2923.111, qualifying adults shall not be required to obtain a handgun license. A “qualifying adult” is a person who is at least 21 years old, is not legally prohibited from carrying a firearm, and satisfies the criteria to be eligible for a concealed handgun license in § 2923.125. Subsection (C)(1) of § 2923.111 states that “qualifying adults” who concealed carry a handgun “shall be deemed to have been issued a valid concealed handgun license.” If a “qualifying adult” is treated entirely like a license, and thus an affirmative defense, then Ohio falls into classification “3.” If a “qualifying adult” is treated as true permitless carry for concealed handguns, then Ohio falls into classification “2.” Based on reasoning and dicta in recent case law, it appears Ohio courts may lean in the direction of treating “qualifying adults” as true permitless carry for adults 21-and-older; however, there is also some language suggesting that “qualifying adults” maybe treated by the courts as a license which would make it a defense.
Another example is Indiana. Indiana’s carry laws may be classified as ether a “0” or “4” depending on how the statutory scheme is interpreted. Indiana Code § 35-47-2-1 states that a person who is not prohibited from possessing or carrying a handgun by federal or state law and does not meet the requirements to obtain a handgun license in Indiana Code § 35-47-2-3 may carry a handgun without a permit in the locations enumerated in subsection (b). These locations are limited to private property, vehicles (unloaded, not readily accessible, and secured in a case if the vehicle belongs to another person), shooting ranges, firearm instructions courses, and while hunting. These enumerated locations do not establish a right to carry a handgun in public. Indiana Code § 35-47-2-3, however, states that anyone over the age of 18 who is not otherwise prohibited from carrying or possessing a firearm may permitless carry a handgun. These two sections, Indiana Code § 35-47-2-1 and Indiana Code § 35-47-2-3, have competing geographical scopes and it is unclear whether they apply to different categories of persons.
Another example to consider is Alabama. Alabama’s gun laws may be classified as either a “1” or “3;” however, it is likely that Alabama falls into classification “1.” The Alabama Legislature repealed Alabama Code § 13A-11-73, which created the concealed carry permit requirement, by passing Act 2022-133, 3 § 9(2). Alabama Code § 13A-11-50, however, remains on the books. Alabama Code § 13A-11-50 states: “A person who, in violation of this article, carries concealed about his or her person or in a vehicle a pistol or firearm of any other kind shall, on conviction, be guilty of a Class B misdemeanor.” If this section does not in and of itself create a prohibition on concealed carry, then it is essentially an un-triggerable criminal offense after the repeal of the permit requirement. Alabama’s gun laws would then fall into classification “1.” Alternatively, if this section creates a prohibition on concealed carry, then repealing the permit requirement does not transform Alabama into a permitless carry state. Whether Alabama falls into classification “1” or “3” thus turns on the phrase “in violation of this article” in Alabama Code § 13A-11-50. Because the legislative intent in repealing the permit requirement was to establish Alabama as a permitless carry state, it is more likely that Alabama Code § 13A-11-50 should be interpreted as a criminal offense without a triggering provision.
Next, consider the statutory scheme in Georgia. While Georgia makes it a criminal offense to carry any firearm subject to an exception for a “lawful weapons carrier” and a defense for license holders, Georgia Code § 16-11-137 prohibits detaining an individual merely to ascertain whether he holds a license or is a lawful weapons carrier. The full provision reads,
A person carrying a weapon shall not be subject to detention for the sole purpose of investigating whether such person has a weapons carry license, whether such person is exempt from having a weapons carry license pursuant to Code Section 16-11-130 or subsection (c) of Code Section 16-11-127.1, or whether such person is a lawful weapons carrier as defined in Code Section 16-11-125.1.
Georgia Code § 16-11-137 (emphasis added).
This report summarizes a more detailed study report; but, it does provide a basis for several conclusions.
First, most states do not have true constitutional carry statutory schemes. The commentaries and reports that suggest 29 states have adopted constitutional carry or permitless carry do not appear to actually distinguish between statutory schemes where carrying a firearm with the intent to go armed is simply not a crime and those where it is a crime subject to defenses afforded to (and burdening) the individual.
Second, Tennessee is far from a true constitutional carry state. There are numerous affirmative defenses and at least two distinctly different permitting systems. Unfortunately, because Tennessee has been misrepresented as a constitutional carry state, many individuals are under the incorrect impression that carrying a firearm with the intent to go armed is not a crime in Tennessee.
Third, there is a clear need for most states to revisit their statutory schemes and to bring them into compliance with the constitutional requirements that are, at a minimum, established by the United States Supreme Court’s holdings in Heller, McDonald and Bruen.
Fourth, statutory schemes that violate the Second Amendment (for instance, Tennessee’s statutory scheme) likely expose the state to liability for violating the Second Amendment, the Fourteenth Amendment, and the Federal Civil Rights Act.
[Editor’s note: Tennessee Firearms Association is a nonprofit classified as a 501(c)(4). It sponsors an externship for second and third year law students who are interested in the Second Amendment. Ms. Hagness did the foregoing research as part of her 2024 externship]
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