The Constitutional “Terra Incognita” of Discretionary Concealed Carry Laws

Despite federal appellate court attempts to provide clearer, though tentative, outlines of the Second Amendment’s scope in the public sphere, the states’ ability to regulate public carry remains ambiguous. Reflecting this ambiguity, state laws remain divergent; some states require that licenses be issued to those who qualify, while others grant issuing agencies discretion in deciding whether to issue a license to otherwise qualified applicants. Further contributing to this confusion are federal appellate court decisions holding disparate opinions of Second Amendment rights in the public realm. In the state of Illinois, gun policy must be structured with conscious regard for Chicago, a city plagued by gun violence. It is only within the last year that Illinois has extended the right to public carry to its citizens, the result of a Seventh Circuit decision declaring Illinois’ categorical ban on public carry unconstitutional. By examining the new Illinois Concealed Carry Act, and comparing it to other state laws in light of the constitutional analyses that Heller and McDonald require, this Note will assess the extent to which public safety issues can guide gun policy. In analyzing attempts to strike this balance, this Note will also examine the constitutionality of two types of concealed carry laws that states have enacted. This Note concludes that both the text and a historical analysis of the Second Amendment support the conclusion that the Amendment protects the right to bear arms in public. It also concludes that the Supreme Court will likely hold that the more restrictive concealedcarry laws are unconstitutional, as such laws grant issuing authorities the power to deny most law-abiding citizens of the right to carry a gun in public.

The full text of this Note is available to download as a PDF.