Omar Bennett
The US Constitution gives citizens the right to bear arms, but the laws surrounding gun ownership and carrying vary from state to state. Some states have constitutional carry laws, which allow individuals to carry a concealed weapon without a permit. This has raised concerns about the implications for public safety, as these laws do not require background checks, permitting, or training. While some states have independent background check requirements, others have no established standards for active-duty law enforcement officers. This has led to an ongoing debate about the balance between Second Amendment rights and public safety.
| Characteristics | Values |
|---|---|
| Constitutional carry | The state's law does not prohibit citizens who can legally possess a firearm from carrying handguns, openly and/or in a concealed manner, thus no state permit is required. |
| Permitless carry | Includes constitutional carry states as well as states where an individual must meet certain qualifications, e.g., no DUIs in the last 10 years, in order to legally carry (Tennessee). |
| Background checks | The ATF background check, NICS background check, and state laws are crucial. |
| Federal laws | Federally licensed firearms dealers (FFLs) have been required to conduct background checks on potential firearms purchasers since the Brady Handgun Violence Prevention Act became effective in 1994. |
| State laws | State laws vary in requirements for the purchase of handguns from private parties. There are also exemptions for concealed carry permit holders in some states. |
| State requirements | Each state determines the requirements and any limitations on the carry of firearms. |
| Minimum age requirement | The BSCA requires background checks for anyone under the age of 21 purchasing a firearm. |
| Training | Permitless carry laws strip away the safety component of training. |
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What You'll Learn
Constitutional carry and background checks by state
In the United States, the term "constitutional carry", also called "permitless carry", "unrestricted carry", or "Vermont carry", refers to the legal public carrying of a handgun, either openly or concealed, without a license or permit. The phrase "constitutional carry" reflects the idea that the Second Amendment to the U.S. Constitution does not allow restrictions on gun rights, including the right to carry or bear arms.
While federal background check laws, which require federally licensed gun dealers to run background checks on prospective gun buyers, still apply in permitless carry states, the majority of these states do not require background checks on gun sales between private parties. This means that someone could legally purchase and carry a firearm without undergoing a background check.
Some states that have passed constitutional carry laws include:
- Vermont: Vermont does not have any provision for the issue of concealed-carry licenses, as none has ever been necessary nor constitutionally allowed.
- Arizona: In 2010, Arizona passed a law eliminating the requirement to obtain a permit to carry a concealed weapon for those 21 and older.
- Georgia: In 2022, Georgia passed a law allowing residents and non-residents 21 years of age and older to carry handguns, long guns, and other weapons including knives, openly or concealed, in public, without a permit.
- Indiana: In 2022, Indiana passed a law legalizing both open and concealed carry without a permit for residents and non-residents 18 and older.
- Iowa: In 2021, Iowa passed a law removing the requirement to obtain a carry permit for both residents and non-residents, allowing for both open and concealed carry without a permit statewide.
It is important to note that each state determines the requirements and any limitations on the carry of firearms, and that state laws vary in requirements for the purchase of handguns from private parties.
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Federal laws and background checks
Federal laws regarding background checks for gun purchases are set by the national government, but states and local governments retain control over certain aspects of the purchase and ownership of firearms. The Second Amendment guarantees Americans the right to bear arms, while the Gun Control Act of 1968 provides federal regulation over firearm possession. Under this act, citizens and US residents must be 18 years or older to purchase shotguns, rifles, or ammunition. All other firearms, such as handguns, can only be sold to individuals 21 or older.
The Brady Handgun Violence Prevention Act, which came into effect in 1994, requires federally licensed firearms dealers (FFLs) to conduct background checks on potential firearms purchasers. The FBI created the National Instant Criminal Background Check System (NICS) as a result of this act, which maintains records of criminal, mental health, and civil orders. The NICS background check is used by 30 states, five US territories, and Washington, D.C. Seven states handle some background checks with the FBI in charge of specific transaction types, while the remaining 13 states, known as "point of contact" states, rely on state law enforcement agencies for background checks.
Despite federal laws requiring background checks for gun purchases from federally licensed dealers, there are loopholes that allow unlicensed sellers to transfer firearms without conducting any background checks. This loophole, often referred to as the "gun show loophole," allows unlicensed individuals to sell firearms anywhere, including gun shows, online, or elsewhere, without conducting background checks on buyers. This has raised concerns as it enables people who should not have access to guns, such as those with domestic violence convictions, violent crime convictions, or mental health issues, to easily acquire firearms.
To address these concerns, some states have implemented universal background check laws, requiring all gun sales to go through a licensed dealer who can perform a background check. Twenty-two states and Washington, D.C., have extended background check requirements beyond federal law to at least some gun sales from unlicensed sellers. Of these, 18 states and Washington, D.C., require background checks for all gun sales. Additionally, the Bipartisan Safer Communities Act (BSCA), signed into law in June 2022, mandates background checks for anyone under 21 purchasing a firearm.
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State-specific background check requirements
In the United States, the term "constitutional carry", also called "permitless carry", "unrestricted carry", or "Vermont carry", refers to the legal public carrying of a handgun, either openly or concealed, without a license or permit. The scope and applicability of constitutional carry may vary by state. Each state determines the requirements and any limitations on the carrying of firearms.
While federal laws are consistent across the country, state laws vary in their requirements for the purchase of handguns from private parties. Some states are fully unrestricted, meaning no permit is required for open or concealed carry. Others allow the open carry of a firearm or handgun without a permit but require a permit for concealment.
Alaska
Alaska is a constitutional carry state, but concealed weapons permits marked NICS-Exempt are also available.
California
California requires a permit to purchase all firearms. The permit for long guns is called a Firearms Purchaser Identification Card (FPIC) and is valid as long as the purchaser is eligible to own a firearm. The handgun permit is purchase-specific (required for each purchase) and is valid for 90 days. Both permits require a background check as well as waiving confidentiality regarding any mental or psychiatric institutional confinement. All firearms sales must be completed through a dealer. A permit to purchase, a background check, and transaction report to the DOJ are required to buy a handgun. No person may sell, loan, or transfer a firearm to a minor, nor sell a handgun to an individual under 21 years of age. All ammunition purchases require a DOJ “point of sale” eligibility check with $1 paid by the consumer.
Georgia
Georgia is a constitutional carry state, allowing both residents and non-residents 21 years of age and older to carry handguns, long guns, and other weapons including knives, openly or concealed, in public, without a permit.
Indiana
Indiana is a constitutional carry state, allowing both residents and non-residents 18+ to carry handguns openly or concealed, without a permit.
Iowa
Iowa is a constitutional carry state, allowing both residents and non-residents to carry handguns openly or concealed, without a permit.
Kansas
Kansas is a constitutional carry state, but a concealed handgun license can also be used as an alternative to a background check.
Kentucky
Kentucky is a constitutional carry state, but a Concealed Deadly Weapons License (CCDW) and Judicial Special Status CCDW can be used as an alternative to a background check.
Louisiana
Louisiana is a constitutional carry state, but a concealed handgun permit can be used as an alternative to a background check.
Michigan
Michigan requires a License to Purchase a Pistol (LTP), which can be used as an alternative to a background check.
Minnesota
Minnesota requires a Permit to Carry a Pistol or a Permit to Purchase/Transfer a Firearm, whether through an FFL dealer or a private transaction.
Nebraska
Nebraska requires a permit to purchase all firearms, whether through an FFL or a private transaction.
New Jersey
New Jersey requires a permit to purchase all firearms, whether through an FFL or a private transaction. The permit for long guns is called a Firearms Purchaser Identification Card (FPIC) and is valid as long as the purchaser is eligible to own a firearm. The handgun permit is purchase-specific (required for each purchase) and is valid for 90 days. Both permits require a background check as well as waiving confidentiality regarding any mental or psychiatric institutional confinement.
New York
New York requires a license for all handgun purchases and possession, whether through an FFL or a private transaction. A Supreme Court decision in June 2022 struck down the proper-cause requirement in the New York concealed carry law.
North Carolina
North Carolina requires a permit to purchase a handgun, but this requirement doesn’t apply if the person has a concealed handgun.
Tennessee
Tennessee is a constitutional carry state, but does not allow an individual to carry without a permit if he or she has received a DUI in the last five years or two or more in the last 10 years.
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Background check exemptions
Background check requirements for gun purchases vary across the United States. While federal laws provide a baseline, each state has its own regulations. Some states require background checks for all firearm purchases, including private sales and those at gun shows, while others have no such requirement. In states without background check laws, unlicensed private sellers can sell firearms without conducting a background check on the purchaser.
Federal Exemptions
Federal law allows individuals with certain firearms-related permits issued by state or local governments, such as concealed weapons permits, to bypass the federally mandated background check. These permits must meet specific criteria: they must have been issued within the previous five years in the state where the firearm transfer will take place, and an authorised government official must have conducted a background investigation to verify that firearm possession would not be unlawful. Permits issued after 30 November 1998 qualify as exempt only if the approval process included a National Instant Criminal Background Check System (NICS) check. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) determines which permits in each state qualify for the exemption.
State Exemptions
Some states have developed laws requiring all handgun purchases to be processed through a federally licensed firearms dealer (FFL), resulting in background checks being performed on buyers. However, several states have created exemptions for both waiting periods and background check requirements for permit holders. These exemptions typically follow the guidelines set by the Brady Handgun Violence Prevention Act, also known as the Brady Law or Brady Bill. Under this law, a permit holder is exempt from a waiting period and/or background check as long as they possess a valid concealed carry permit.
State-Specific Exemptions
- California: While California requires all firearm purchases to be made through an FFL, holders of a California Entertainment Firearms Permit (EFP) are exempt from background checks.
- Alaska: Concealed weapons permits are marked as NICS-Exempt.
- Kansas: Concealed handgun licenses issued on or after 1 July 2010 qualify as alternatives to the background check.
- Kentucky: The Concealed Deadly Weapons License (CCDW) and Judicial Special Status CCDW issued on or after 12 July 2006 are exempt.
- Louisiana: Concealed handgun permits issued on or after 9 March 2015, as well as lifetime concealed carry permits for the initial five-year period from the original issuance date, are exempt.
- Michigan: The License to Purchase a Pistol (LTP) is the only permit that serves as a NICS alternative.
- Mississippi: The state issues a license to carry a concealed pistol or revolver under Mississippi Code Section 45-9-101, which is exempt from the background check requirement.
- North Dakota: Concealed weapons permits issued on or after 1 December 1999 are exempt.
- Ohio: Concealed weapons permits issued on or after 23 March 2015 are exempt.
- North Carolina: Exemptions include law enforcement officers, active-duty military personnel, and individuals with a valid concealed carry permit.
- Minnesota and Rhode Island: These states have their own independent background check requirements. Dealers must contact the FBI directly for the federally mandated background check and also get in touch with a state or local agency for the state-mandated background check.
- Illinois: Non-residents carrying an unloaded firearm enclosed in a case are exempt from the requirement to have a Firearm Owner's Identification (FOID) Card.
- New Mexico: No permit is required for concealed carry if the handgun is both unloaded and concealed.
- Vermont: No permit is required or offered for open carry or concealed carry. This applies to both residents and non-residents 16 and older who can legally own a firearm.
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The Second Amendment and background checks
The Second Amendment of the United States Constitution grants citizens the right to bear arms. However, this right is not absolute, and certain regulations and restrictions are in place regarding firearm ownership and the process of carrying them. One such regulation is the requirement for background checks before purchasing a firearm.
Federal laws regarding background checks are consistent across the country, but state laws can vary in their requirements for purchasing handguns from private parties. Some states have additional exemptions for concealed carry permit holders. Since the enactment of the Brady Handgun Violence Prevention Act in 1994, federally licensed firearms dealers (FFLs) have been mandated to conduct background checks on prospective firearms purchasers. The FBI established the National Instant Criminal Background Check System (NICS) to maintain records of criminal, mental health, and civil orders as a result of the Brady Act.
The NICS background check is crucial in determining whether an individual is qualified to purchase a firearm. If an individual does not pass the background check, they may be prohibited from making the purchase. Additionally, the Brady Act includes a provision that exempts concealed carry permit holders from undergoing a federally mandated background check in certain states. As of March 14, 2023, President Joe Biden has issued an executive order to increase the number of background checks conducted before firearm purchases and accelerate the implementation of the Bipartisan Safer Communities Act (BSCA), which mandates background checks for individuals under 21 years of age seeking to purchase firearms.
The topic of background checks in relation to the Second Amendment has sparked debates and discussions. Proponents of stringent background checks argue that they are essential for public safety, aiming to prevent firearms from falling into the wrong hands. On the other hand, critics argue that these checks can infringe on the Second Amendment rights of law-abiding citizens, creating unnecessary obstacles for those seeking to exercise their constitutional right to bear arms. Some states have adopted "constitutional carry" or "permitless carry" laws, allowing individuals to carry firearms openly or concealed without a permit. As of 2022, 25 states have passed constitutional carry bills, with 22 of them already in effect.
While the Supreme Court has not explicitly ruled on whether background checks on firearm sales violate the Second Amendment, it is generally accepted that these checks are constitutional. In over a century of background check laws, no court has overturned them on Second Amendment grounds. The rationale is that background checks are reasonable measures to ensure that firearms do not end up with individuals who are prohibited by law from possessing them, such as felons, domestic abusers, minors, and fugitives from justice. Even conservative legal scholars concur that background check laws do not transgress the Second Amendment.
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Frequently asked questions
Constitutional carry means that the state’s law does not prohibit citizens who can legally possess a firearm from carrying handguns, either openly or in a concealed manner, thus no state permit is required.
No, constitutional carry does not require a background check. Permitless carry legislation strips states of essential background checks, permitting, and training standards for carrying concealed guns in public.
As of 2022, 25 states have passed a constitutional carry bill, with 22 of those states having permitless carry legislation in effect. These states include Arizona, Georgia, Idaho, Indiana, Iowa, Kansas, and Kentucky. Vermont does not have any provision for issuing concealed-carry licenses, but Vermont residents wishing to carry handguns in other states must acquire a license from a state that is valid in their destination.
The implications of constitutional carry are debated. Some argue that stringent background checks can infringe on the Second Amendment rights of law-abiding citizens, creating unnecessary hurdles for those seeking to exercise their constitutional right to bear arms. On the other hand, many Americans support concealed carry permitting systems that provide firearm safety training and ensure that only responsible gun owners can carry concealed guns in public.
