An opinion released today by the Arkansas Attorney General says “no.” Like most states, Arkansas allows adults to obtain a permit to carry a concealed handgun for lawful purposes, after passing a background check and safety class. Like a few states, Arkansas prohibits licensed carry in “Any church or other place of worship.”
In short, the AG opinion says that there is no Free Exercise violation because the statute does not (at least facially) hinder the exercise of religion. Further, the statute is one of general applicability, and does not single out religion for different treatment, because the Arkansas conceald handgun license (CHL) statute also bans CHL in some other locations. The opinon suggests that what these disparate places have in common is that they are likely to be crowded.
There is no Establishment Clause violation because the CHL in churches ban does not appear, facially, to favor one sect or denomination over another. (The AG opinion and this post both use “churches” to include synagogues, mosques, and all other houses of worship of various religions.)
The AG opinion strongly emphasizes that the issue is one of first impression, and that a full legal resolution of the issue might well require fact-finding. The purpose of an Attorney General opinion is only facial review, and not the kind of fact-finding that a court might engage in.
Given the self-declared limited scope of the AG opinion, its tentative legal conclusions are plausible. However, I think that if we broaden our view a little bit–in either a court of law, or the court of public opinion–there do appear to be some potential violations of the Establishment and Free Exercise clauses.
Two preliminary caveats: First, neither the AG opinion nor this post address whether the church ban violates the right to arms clause of the Arkansas Constitution, or the Second Amendment. I expect that an argument on right to arms grounds would probably involve the rights of almost any landowner to choose to allow licensed carry on his/her/its property; the argument would not be specific to churches as landowners.
Second, as demonstrated by litigation in Minnesota, some churches consider it an intolerable burden on their free exercise of religion if, in order to exclude licensed gun owners, they must post a “no guns” sign similar to signs that ordinary businesses in the state routinely post in order to exclude licensed carry. I presume that a way can be found to accomodate their twin desires for “no guns” and “no signs” and that this accomodation does not require banning guns from churches that want to allow carry. For example, a statute could presumptively ban guns at churches, and then allow individual churches to opt out by posting a “licensed gun owners are welcome” sign. Or a church could be allowed to authorize carry by specific persons who received a letter of authorization from the church.
One test for Free Exercise violations involves whether the statute imposes a significant burden on the free exercise of religion, even if the legislature had no malign intent to create a burden. A complete ban on CHL at churches, even at churches which strongly desire licensed carry on their premises, does burden free exercise. Churches, by their very nature as religious institutions, are more likely to be the targets of attacks by persons motivated by religious hatred. If the law prevents congregations from protecting themselves, then the state government is making church-goers defenseless at precisely the time when they are especially likely to be attacked by a criminal acting out of religious hatred. In my forthcoming Connecticut Law Review article Pretend “Gun-free” School Zones: A Deadly Legal Fiction, I describe the case of a December 2007 attack on a church in Colorado Springs by a person who earlier that day had murdered people at a Christian youth group. Dozens of lives were saved because one of the parishioners at that the New Life Church, Jeanne Assam, was using her Colorado CHL to lawfully serve as a volunteer security guard at the church that Sunday.
Obviously not all churches have the same beliefs about the legitimacy of self-defense and defense of others as does the New Life Church. This brings use to the second violation of the First Amendment. The morality of using deadly force when necessary to protect innocent lives is a strongly debated topic among various denominations. The early Christians disagreed on the topic. Historically, the standard Jewish and Catholic view was that self-defense was a right and defense of others was often a duty. Some Christians, particularly since the 20th century, take an opposite view. Likewise, many adherents of the major religions of Asia also support self-defense, while some (especially some Therevada Buddhists) do not. These doctrinal differences about self-defense represent very important, sincerely-held differences in religious beliefs. A religion is, after all, not just about the forms of ritual; religion is especially concerned about providing guidance for moral conduct at moments when a person may face decisions involving the end of life.
The state, of course, must be neutral between the various religious beliefs. The state should not compel a Quaker to shoot someone who is trying to kill her, nor should the state forbid a Baptist from saving her own life. The CHL prohibition in churches violates the Free Exercise clause because it prevents self-defense by members of a religious community, when they are gathered as a community, even if key tenet of the religion is the communal duty of the adherents to protect their fellow adherents.
Moreover, the CHL ban also violates the Establishment clause because it favors some denominations over others. In effect, the statute privileges pacifist denominations over non-pacifist ones, by forcing the non-pacifist religions to obey pacifist standards of conduct in their own houses of worship. This is not only a Free Exercise violation, it is an Establishment clause violation, because it plainly creates the message that the pacifist way of being is the only way of being which the state will allow in any church, anywhere in the boundaries of the state.
Establishment clause jurisprudence pays attention to the audience and context of the various messages that the government sends. A government message which is directed, for example, at tax accountants, may be less likely to be construed by the audience as an endorsement of a particular religion than that same message would be if delivered by a public school principal to a class of first graders. Churches are quintessential places for family activity; if children know (as many do) that their parents carry handguns lawfully in many places on Monday through Saturday, and on Sunday afternoon, and that the government forbids the parents from carrying the licensed, concealed handguns on Sunday morning at church, then some of those children may perceive a government message expressing an incompatibility between self-defense and religion. The de facto result is government favoritism of pacifist religion over non-pacifist.
None of the above analysis depends in any way on a finding of an expressed desire of legislators to favor pacifism over non-pacifism. First Amendment religion jurisprudence is not limited to a search for bad motives. A statute can violate the Free Exercise or Establishment clause solely because of its effects, including effects that legislators may not have considered or foreseen.
Of course the above analysis is just a sketch of an argument. Law journal students who are interested in the interplay of First and Second Amendment rights might find the issue to be a good topic for a Note.
Update: In response to various thoughtful comments…Yes, if you apply Employment Division v. Smith the way that the Attorney General did, this would defeat a Free Exercise claim. I suggest that such an application of Smith is not necessarily mandatory. Smith says that if you ban peyote (or defensive handgun-carrying) everywhere, then the general ban can apply in churches, without violating Free Exercise. Even if the ban is an essential part of a religious ceremony (peyote) or a matter of life and death for religious people who are at heightened risk of hate crimes (my argument above). This would be Smith applied to Illinois, where handgun carry in general is prohibited (with certain exceptions), and there is no statutory provision to even issue a CHL.
Arkansas is, I suggest, different. It allows CHL in general, and selects churches as part of a small group of places where CHL is prohibited. Pursuant to Arkansas Code Annotated section 5-73-306, the only places (other than government property) where CHL is banned notwithstanding the wishes of the property owner, are churches, bars, sporting events, and religious or independent schools or colleges. The Attorney General suggests that these are all tied togethether by the common characteristic of being likely to be crowded. If crowdedness is the rationale, the list is both under-inclusive and over-inclusive. Accordingly, it appears that at least some further analysis would be required before rejecting a Free Exercise claim. In addition, not all states have adopted Smith’s restrictive test for their own state constitution’s Free Exercise jurisprudence, but that’s a separate issue.
josh bornstein says:
I don’t know the law here, but is the above really true? That would seem to make the church (most likely, one person at the church) the de facto authority. I would have guessed that if a church allows concealed guns, it would have to allow them to all who were eligible.
September 29, 2009, 9:28 pmPaul Nelson says:
David, although I’d love to contest a few of your points, I’ll satisfy myself with just one – an important one – in particular.
Banning handgun tote-age in places of worship does not inexorably lead to an unconstitutional preference of pacifist demoninations over their non-pacifist cousins. To conclude as much is to assume that w/o a gun in one’s possession, self-defense is impossible. Knives, forks, fists, and razor-sharp church bulletins constitute a mere rebuttal’s worth of examples of the innumerable means by which self-defense can be accomplished w/o the benefit of lead. The right of self-defense existed long before the handgun’s invention.
Although your analysis is just a “sketch,” I’d suggest applying some nuanced “shading.”
September 29, 2009, 9:28 pmSteve says:
Moreover, the CHL ban also violates the Establishment clause because it favors some denominations over others. In effect, the statute privileges pacifist denominations over non-pacifist ones, by forcing the non-pacifist religions to obey pacifist standards of conduct in their own houses of worship.
Right, and the drug laws violate the Establishment Clause because they privilege non-peyote-using denominations over peyote-using ones, by forcing the peyote-using ones to obey non-peyote-using standards of conduct in their own houses of worship. I think that argument was lost some time ago.
Of course, an important difference is that if you ban peyote use, you’re actually penalizing an affirmative tenet of some religion. But no religion insists on concealed carry in church as part of some religious ritual, it’s just that some churches don’t have an objection to bringing a gun on the premises.
September 29, 2009, 9:32 pmArthurKirkland says:
Guns, churches and guns in churches.
VC porn.
September 29, 2009, 9:47 pmMark N. says:
This is plausible as a stand-alone argument, but does it fit into any of the existing free-exercise jurisprudence? My impression is that the existing jurisprudence tends to require a closer connection to the actual practice, e.g. gun-carrying actually being a positive tenet of the religion that the state interferes with. Otherwise a very broad set of things could in some way burden religion.
September 29, 2009, 9:49 pmThe Unbeliever says:
Ok, but then don’t general bans of firearms in public places violate this as well? If a “key tenet of the religion is… to protect their fellow adherents”, then shouldn’t they be allowed to protect their fellow worshippers at a restaurant, in a public park/building, or at a school?
If the community aspect is the key thing here, what about when they participate in community events in public areas? Say a concert or a festival held in a public park has a no guns policy. The church youth group organizes an outing there. Does that come into conflict?
I understand a religious organization has stronger grounds for activity within their place of worship, but if we really are treating armed self-defense as a religious tenet, then I have a hard time seeing why the individual exercise of it loses protection outside those walls.
September 29, 2009, 10:22 pmMatthew Carberry says:
Do the beliefs of Sikhs, whose religion expressly require the carriage of weapons, provide an example of a bona fide religious group negatively impacted by such church restrictions?
September 29, 2009, 10:47 pmMonty says:
What about the favoring religion over non-religion? Doesn’t this law create a special status for places of worship over non-religious gathering places?
September 29, 2009, 11:15 pmgerbilsbite says:
Since packin’ heat is only one of many possible methods for defending self and others available to these adherents (many of whom I’m sure belong to faiths that far predate firearms), I gotta go with Paul Nelson on this one, until I see a church that holds carrying guns specifically as a tenet of faith and requirement for worship.
September 29, 2009, 11:30 pmMatthew Carberry says:
Isn’t that the same argument that says that “arms” in the 2nd Amendment sense should only apply to arms extant in the 1800′s?
If a church/faith allows for self-defense or particularly armed self-defense, “if you have no sword sell your cloak and buy one”, then “arms” should comprise any object meeting the general definition, especially since firearms are the most effective/efficient to date.
September 30, 2009, 1:43 amchris says:
I am fairly sure that some if not all of the various state’s church bans were put into place to prevent armed black parishioners from being a danger to the Klan members here in the south that so loved to harass their Sunday services. I know for a fact that many if not most of the gun laws here in the south were put into place in order to disarm minorities so it wouldnt surprise me one bit if this were the case with these laws too.
It is an interesting change because in colonial times, most states REQUIRED all able bodied males to attend church armed.
September 30, 2009, 2:15 amMark N. says:
I’ve only been able to find evidence of this in a handful of slave-owning states, with the purpose being to ensure that slaveowners weren’t susceptible to a slave revolt while off unarmed at church (Virginia’s the only state where I can find the statute).
Such a law would in any case clearly violate the Free Exercise Clause, if applied to religions that consider it sacrilege to bring weapons into a sanctuary, or perhaps even to carry weapons at all. As a side note, prohibitions on carrying arms in church are quite venerable; the Theodosian Code included such a provision.
September 30, 2009, 3:05 amSMatthewStolte says:
I have a friend who used to hold a house mass once a week during the week. All of us who went also went to our respective churches on Sunday morning. After communion, we had dinner and conversation. There were about ten of us.
I am curious how the law would apply to that situation.
(To be clear, I’m not making a point but asking a question.)
September 30, 2009, 6:18 amPintler says:
I’m curious what people who think the ban is OK think about this hypo:
You are the priest/pastor/rabbi of the church attended by the Smith family (Mr., Ms., and the children). Ms. Smith was a police officer for many years until she recently quit to take care of the children full time (not having served quite enough time to trigger the provisions of LEOSA for retired officers). Shortly after that, a drunken wrong way driver put her in a wheelchair, so using a knife or whatever for defending her children is somewhat problematic. He husband, currently working long hours as a detective, often cannot accompany her and the children to the church. She comes to you and says her husband’s department has warned her that a violent felon they arrested in the past has been released because of a Supreme Court ruling on evidence admissibility, and informants report he is threatening to harm them, being specifically quoted saying ‘I know where they go to church’. She asks if it’s OK if she comes to church armed, in case he attacks at the church, during the trip, or waits at the house for them to return. What do you say?
It seems to me that a law that forbids the priest/pastor/rabbi (or board of deacons, or whatever decision maker the church designates) from allowing Ms. Smith to come to church armed is bad policy.
Whenever these discussions come up, I hope people remember that there are people with very good reasons to have permits.
September 30, 2009, 6:29 amOren says:
Indeed. Free Exercise has virtually nothing to do with this.
September 30, 2009, 6:40 amCharles Epperson says:
The part of laws like this that get me is that even if the place of worship wanted to allow the carry of firearms they would be prohibited. Why does the government have that kind of control over private and in this case religious purposed places? Is that not the reason that there are the Establishment and Free Exercise clauses to begin with? To keep out the Government from religion? It does not matter that we cannot find a religion that requires arming of people but that their might be one.
Also the part of “other place of worship” worries me. What if we worship in my house. This would prohibit me having firearms there.
September 30, 2009, 6:42 amAbdul Abulbul Amir says:
The ability to bring a knife or a fist to a gunfight is a rebuttal to nothing at all. The Colorado case seems pretty clear in the need for a firearm to defeat an attacker so armed.
September 30, 2009, 6:46 amKenB says:
Given that the government should be neutral among diverse religious beliefs, how can the CHL ban be properly applied to a cult worshiping Ares, supposing that the cult somehow uses firearms in its rituals?
September 30, 2009, 7:08 amegd says:
Lets look at a similar situation.
A local state legislature passes a law allowing the use of marijuana for medical purposes. The state then passes certain exceptions to the law: no use of marijuana in schools, no sales of marijuana without a valid prescription, private citizens can decide to prohibit the use of marijuana on their property, and no use of marijuana in Churches.
What is the purpose of specifically restricting the use of marijuana in Churches, while allowing private citizens to decide whether to allow marijuana in their homes? The state is telling Churches that they cannot be relied upon to adequately “protect” their parishioners from the dangers of marijuana.
The state is essentially excluding from Churches the private right to control their property by creating a specific exception. By singling out Churches and making them unable to control their property, this has the effect of inhibiting the practice of religion.
Singling out Churches does not have a secular purpose, the law is not one of general applicability but rather one which specifically targets Churchgoers.
September 30, 2009, 7:15 amOren says:
Read Smith. The law in question is neutral and of general applicability. It was obviously not the product of animus against the (non-existant) cult of Ares. Unless the Court overrules Smith, the Free Exercise argument is a slam dunk.
I’m somewhat more sympathetic to the notion that any private property holder may opt to allow CCW on their premises …
September 30, 2009, 7:17 amyankee says:
I was wondering this myself. What are the grounds for this sort of express distinction between houses of worship and similar nonreligious organizations such as secular community centers? Here religion is being favored in some respects and disfavored in others, since community centers may not prohibit concealed weapons on their property unless they post a conspicuous sign, but churches are prohibited from allowing concealed weapons on their property even if they want to.
I’m not sure what the appropriate constitutional analysis is, but an express regulation of houses of worship that treats them differently from similarly situated nonreligious organizations strikes me as problematic.
September 30, 2009, 7:19 amBama 1L says:
But you are going to find in nearly every actual case that the churches support the ban and don’t want any suggestion that the gun-owner’s right to carry would trump the church’s right to exclude. You would have the gun-owner in a dispute with the church, which the Arkansas statute says the church should win. Is anyone actually unhappy with that result?
The more interesting case would be if the state affirmatively granted the right to carry a gun into public places including churches, and the church fought it on Free Exercise grounds: you can’t tell us who and what can enter our churches.
Utah Code § 76-10-530 is an interesting attempt to grapple with this problem. You can carry a firearm pretty much anywhere in Utah, except for a private residence or house of worship whose owner has prohibited firearm. A house of worship has some interesting options for excluding firearms, including making a one-time announcement in a newspaper. It does not have to post a “no firearms” sign. These options were put here at the insistence of religious interests, who were concerned that earlier statutes did not grant them an affirmative right to exclude firearms and might require them to put up tacky, distracting signs. And, yes, the LDS Church did indeed issue notification that it does not allow guns in its houses of worship.
(I think Tom Berg did something on this years ago. Probably also some old VC threads.)
September 30, 2009, 7:26 amyankee says:
The problem is that it’s not a law of general applicability. It singles out nineteen specified places where concealed weapons are not allowed:
ten types of government bodies;
athletic events not related to firearms;
establishments with liquor licenses;
establishments where beer and light wine are consumed on the premises;
schools;
airports;
any place firearms are prohibited by federal law;
parades;
places where the owner specifically prohibits firearms (and posts a conspicuous sign saying so); and
“any church or other place of worship.”
By the express terms of the statute, churches are treated differently from similarly situated community, charitable, or civic groups.
September 30, 2009, 7:33 amMike S. says:
While Jewish law recognizes the right, indeed the obligation, to defend oneself or others from those attempting murder or rape, it forbids weapons in a study hall where discussion or study of Jewish law is ocuring. There is some dispute over the application to synagogues but most of the authorities I have read forbid weapons there, too.
September 30, 2009, 7:57 ampete says:
Just as a pratical matter, churches can be robbed and staff/members assaulted just like anywhere else. One of the deacons at the church I grew up at was badly beaten by a robber while opening up the church one day and the robber got away with a lot of valuable church property (getting caught with the church handbells made a conviction later on easy at least). I have worked with other churches in inner cities where burglary was an issue for them as well and in one of these churches several of the church employees did carry. Churches are robbed because thieves know that there usually will be cash at the church and that churches have property like musical equipment, tvs, and computers that can be easily sold.
September 30, 2009, 8:36 amLarryA says:
Under Texas law firearms are prohibited on the premises of a school, unless in accordance with written policy or with written permission.
The Harrold ISD has issued a written policy that teachers with CHLs can carry. Also, I have a letter from my local ISD saying I, as an individual, can take firearms into classrooms to teach Hunter Education.
Texas law on church carry is fun. According to Penal Code Section 46.035 (b) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder’s person: (6) on the premises of a church, synagogue, or other established place of religious worship.
However, under 46.035 (i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06.
So a church that wants to prohibit concealed carry must post a large “30.06” sign on the entrances.
Ever try to prohibit bingo (gambling) in Catholic churches?
We’re already past that. The churches that want the ban on carrying are saying it infringes on their belief to have to post signs, as non-religious locations do. The answer, of course, is that it infringes just as much if a pro-carry church has to post signs. The least intrusive solution is for the state to leave churches just like other locations.
There were a lot of gun laws passed for that purpose, but they were back in the 1800s and early 1900s. The new state CHL laws were all written after 1985.
Not in my experience. There isn’t a single church that I know of here in this part of Texas that posts the required sign. I’ve had several pastors take my concealed handgun class so they can get licensed. I’ve trained a number of people who are leaders in their respective churches, and would not appreciate bans. Concealed carry in right-to-carry states is well within the mainstream of public opinion, much more so in 2009 than it was in 1989.
In many right-to-carry states, I’d suggest that the real reason some pastors don’t want to have to post anti-gun signs is that they know it will cost them members.
It’s always interesting when I run into a church member who thinks concealed carry should be banned in church because Christians shouldn’t use guns to protect themselves in a place of worship. I always ask if the church pays out of its budget for a security firm who will send officers carrying handguns to protect church property. If it’s immoral to do something, isn’t it immoral to hire someone else to do it?
September 30, 2009, 9:10 amAsher Steinberg says:
“Moreover, the CHL ban also violates the Establishment clause because it favors some denominations over others. In effect, the statute privileges pacifist denominations over non-pacifist ones, by forcing the non-pacifist religions to obey pacifist standards of conduct in their own houses of worship.”
What are these non-pacifist religions that want you to bring guns to pray? Islam may not be terribly pacifist in some brands, for instance, but I don’t think they want worshipers to bring guns to mosque, or that not letting people bring guns to mosque impedes their worship.
September 30, 2009, 9:31 amShelbyC says:
ArthurKirkland:
Hey Kirkland, try not to get the entire comment thread deleted this time, eh? :-)
September 30, 2009, 10:09 amOren says:
The CSA singles out (on the order of nineteen) specified chemical compounds that one is not allowed to ingest. No one has suggested that this distinction means that it is not of general applicability.
So are religions whose ceremonies involve wafers, wine, apples and pomegranates.
I’m not totally insensitive to this argument, but it strikes me as somewhat weak to say that any time the government makes any distinction: peyote v. booze, churches v. malls, daggers v. turbans (thinking about Sikhs and airplanes) that affects religions it must meet strict scrutiny.
September 30, 2009, 10:32 amyankee says:
I don’t know about strict scrutiny, but there’s a long history of exceptions to generally applicable laws to accommodate religion. This law is clearly not of that type, because it places a mandatory restriction on all religions whether they want concealed carry or not.
September 30, 2009, 10:51 amADF Alliance Alert » Arkansas AG: Does concealed handgun carry in church violate the First Amendment? says:
[...] Kopel writes at the Volokh Conspiracy: “An opinion released today by the Arkansas Attorney General says ‘no.’ Like most [...]
September 30, 2009, 10:52 amOren says:
But the point of Smith was that while laws that accommodate religion (say, by providing exemptions from military service for religious objectors) are permissible under Establishment, such accommodations are not required under Free Exercise.
That is, the government may, but need not, make such exemptions to neutral laws of general applicability.
September 30, 2009, 11:07 amJon Roland says:
It can for some religions. It has been said that “firearms are the holy relics of the national religion of Texas”. They also have a special place in the civic religion of constitutionalism. The Constitution Society is also known as the Constitutionalist Church.
A place of worship, like any private place, certainly has the right to exclude people who are carrying weapons, but if it does it also has to assume liability for protecting them while they are inside. If it has people check in firearms at the door, it has to give them back when they leave.
September 30, 2009, 11:25 amyankee says:
Of course; we don’t disagree there. My point is that this is not a law of general application: it imposes a new restriction on houses of worship that is not applicable to similarly situated secular organizations. Unlike community centers, charitable groups, or private businesses, houses of worship may not permit concealed carry on their property whether they want to or not. By the express terms of the statute, it is a regulation of religion as such.
Nor is the law a permissible (but nonmandatory) accommodation of the many religions that think it improper to bring weapons into a house of worship. You cannot “accommodate” some religions by restricting the conduct of all religious organizations as such.
September 30, 2009, 12:42 pmBama 1L says:
LarryA, two points:
The state certainly can do so; churches don’t have some special First Amendment power to ignore laws against gambling. Many states have special charitable gambling laws. In some states, laws were simply not enforce.
Also, frankly, this is an outdated stereotype. Not one of the parishes to which I have belonged has had a bingo game the last ten years.
Yes, exactly. But the First Amendment tends to protect churches from this sort of choice. Government generally can’t force churches to do things, particularly things that involve the church sending a message to its members.
Imagine if the federal government eliminated the Title VII clergy exemptions and instead said that churches can discriminate in clergy employment only if they put up signs. So I would walk into my church and see a sign that says, “Pursuant to 42 U.S.C. § whatever, the Catholic Church claims an exemption from federal law regarding nondiscrimination in employment.” Well, I already knew that we don’t ordain women, but I really don’t like the idea of a government-mandated sign. The bishops would like it even less, and would have made a First Amendment case out of it.
September 30, 2009, 1:24 pmBama 1L says:
Something I don’t completely understand is why a church in Arkansas couldn’t just permit concealed carry on its property the same way I could allow a guests in my home to carry concealed weapons. So the concealed carry license wouldn’t authorize it; the church’s permission would.
September 30, 2009, 1:28 pmdisintelligentsia says:
My concern is not so much that an area is deemed to be too crowded for firearms, although it is too squishy a concept and easily manipulated to almost any area nowadays – at what population density should there be a cut-off for your second amendment rights? My concern is that protection is not provided for – if the government is to cut-off a citizen’s right to protect themselves and their loved ones, then then state should provide the protection for them. You can’t have a “cop in your pocket” to protect you all the time so you need the right to be armed for self-defense, but if that right is gutted, then you do need a “cop in your pocket”, so to speak. This then could run afoul of state-church restrictions if the state provides security for every religious establishment or specifically taxes churches to provide for that service.
September 30, 2009, 1:46 pmOren says:
This reveals, at least to me, that I don’t have a formal notion of what a “law of general application means”. In my first impression, this is such a law since it does not particularly target any religious activity but rather an activity entirely incidental to a religious one.
I will concede that one can envision the LoGA test much more stringently, in which case this law probably doesn’t qualify. I’m not sure what such standard the Court intended to promulgate in Smith.
(1) The law makes distinctions just like laws distinguishing daggers from turbans and peyote from wine. Not every distinction that touches on a religious item is a violation of Free Exercise.
(2) Carrying concealed into a church is not a religious activity. It is a secular activity incidentally related to religious expression.
September 30, 2009, 2:30 pmpete says:
And many, if not most, churches are empty or at least far less crowded than a typical office or other business most of the time. So the density argument is unconvincing to me. A lot of churches have a handful of employees or even just one employee on a large campus during weekdays or at night. Under the Arkansas law the janitor closing up the church in a dangerous neighborhood for the night by himself does not get to carry because he is on church property.
September 30, 2009, 2:35 pmDilan Esper says:
I am uncomfortable with ANY law that singles out churches, whether it is a ban on money changing in a temple or a ban on guns (or, for that matter, a requirement that church parishoners be armed).
I would interpret the free exercise clause as permitting the application of general laws to churches and forbidding laws that single churches out.
September 30, 2009, 3:29 pmzippypinhead says:
ArthurKirkland says:
ArthurKirkland wins the thread!
September 30, 2009, 3:38 pmzippypinhead says:
Challenging this particular restriction on Constitutional grounds (as opposed to policy grounds) doesn’t strike me as terribly promising, at least not unless and until SCOTUS holds that Second Amendment restrictions are to be adjudged under a rigorous strict scrutiny standard of review. And then you’d still need to get around Heller’s dicta on the permissibility of firearms restrictions in “sensitive” places.
In fact, the only way I can see a court throwing out a prohibition on weapons in places of worship, as part of a longer list of prohibited “sensitive” locations, would be on an as-applied basis impacting members of some religion that affirmatively requires concealed carry as a part of its theology or worship. And the only religions I can think of that might possibly qualify would be Sikh or Jedi (!), both of which apparently require open carry of cutting weapons, not firearms, so a CHL presumably isn’t required in Arkansas.
September 30, 2009, 3:51 pmOren says:
I would read it to forbid laws that single out Churches for restrictions on bona-fide religious activities.
September 30, 2009, 4:16 pmFûz says:
“a church could be allowed to authorize carry by specific persons who received a letter of authorization from the church”
Wyoming Statute 6-8-101 (s).
September 30, 2009, 5:18 pmreadery says:
My religion doesn’t prohibit my getting a 7-figure check from the government. I’d sure like the government to give me one. But does the government’s refusal to give me my religiously-permitted 7-figure check really inhibit my freedom of religious exercise or violate the Establishment Clause? It certainly inhibits my ability to enjoy life to the fullest extent my religion permits. But the fact of the matter is, my religion doesn’t REQUIRE that I receive a 7-figure government check. I’m not in violation of my religion if I don’t get one.
Not every government rule involving a religion becomes a constitutional case even under a very expansive reading of the First Amendment’s religion clauses. Unless it actually interferes in some concrete way with an individual or institution’s ability to practice the religion, there’s no Free Exercise claim. And unless it advances or inhibits religion or a religion in some concrete way, there’s no Establishment Clause claim.
September 30, 2009, 8:11 pmInstapundit » Blog Archive » DAVE KOPEL: Does a ban on handgun carrying in churches violate the First Amendment? “The morality … says:
[...] KOPEL: Does a ban on handgun carrying in churches violate the First Amendment? “The morality of using deadly force when necessary to protect innocent lives is a strongly [...]
September 30, 2009, 8:39 pmgeekWithA.45 says:
Actually, my Catholic catechism made it absolutely clear that because my life was a gift granted directly from God, it was my DUTY to defend it as vigorously as I could, and that the only reason I could allow myself to be killed through inaction or by placing myself into greater danger was if my death would serve some greater good, such as pinning down an advancing enemy to provide others with an opportunity to escape.
September 30, 2009, 8:52 pmPink Pig says:
Whatever the technical justification may be, it is unseemly for any part of the government to regulate any religious group. The ball ought to be in their court — no religious person need justify his position with regard to this.
September 30, 2009, 9:05 pmGun-Bans at Churches. | Little Miss Attila says:
[...] Oh, dear. [...]
September 30, 2009, 10:02 pmLarryA says:
States can indeed pass laws against gambling. They can’t pass laws against gambling in church.
How is forcing a church that wants to prohibit concealed carry to post a sign any different from forcing a church that wants to permit concealed carry to post a sign?
If the legislature had passed a law on almost any other subject that restricted parishioners from doing something legal on the street because they were in church, the bishops would have objected under First Amendment, and immediately prevailed. An example would have been a charitable exception to a law prohibiting raffles that could be used by any non-profit except a church.
Except that the government doesn’t get to decide what is or is not a religious activity. That’s a decision for the church to make.
In this case the religious leaders are objecting to some firearms in church because they believe carrying is immoral. That makes it a “religious activity.”
So a law prohibiting the wearing of ties in church would be Constitutional? Don’t think so.
And if there was a Colorado law prohibiting concealed carry in church it would certainly have interfered in the New Life Church’s ability to practice religion. Particularly for the 50-100 members the active shooter could have killed had he not been stopped by a CHL.
September 30, 2009, 10:03 pmJohn Skookum says:
The Sikhs carry a dagger as a central tenet of their faith. This has gotten them in trouble in some knife-unfriendly jurisdictions such as England, as well as schoolyards and the secure area of airports.
September 30, 2009, 10:43 pmgus3 says:
Eastern Orthodox canon law states that all bloodshed in the sanctuary is prohibited, and any bloodshed renders that place unsuitable for worship. That even goes to smacking a mosquito that’s biting you on the arm.
But that doesn’t mean a cop can’t sit in his car during the midnight service during Easter and Christmas, to deter the trouble-makers who prowl the streets at night.
September 30, 2009, 11:56 pmAnnie B says:
This is an individual who obviously never met a Sikh.
They are required to carry weapons as part of their faith. (Although knives, and most in America settle for small ‘symbolic’ knives most of the time.)
October 1, 2009, 12:09 amTerrye says:
I believe in the right to bear arms. I grew up in Oklahoma, where just about everyone had a gun of some kind..at least back then. However, I have never known of anyone to take a gun into church. Never. I don’t think I ever heard it discussed. It just was not done. It would have been considered disrespectful.
October 1, 2009, 3:43 amajacksonian says:
I always thought it was: God helps them who help themselves.
The State is telling me I cannot help myself, and yet I have the right and liberty to do so. God is supposed to be very forgiving on these things, because he is a busy guy having all of reality to deal with, and just might not be able to get to you when others return to the Law of Nature to threaten you in a most uncivil fashion. Self-defense is a positive liberty retained by all humans and that is self-evident.
I would flip it around and say that this is a prohibition upon the unorganized militia, under the Militia Act of 1903, and that States can only set guidelines for the unorganized milia so as not to run afoul of Art. I, Sec. 10 and that those must include a way for the militia to self-regulate under State auspices. To not allow protection of places of worship under that is to then leave those areas exposed and being unprotected by the unorganized militia. And as all places should have equal protection by the unorganized militia, that is a violation of the provisions of the 14th Amendment incorporating the 1st and 2nd, plus Art. I, Sec. 10 due to the recognition of the unorganized militia as a militia. The idea is to let the people figure it out for themselves so they can serve to protect the State in times of invasion or Danger that will not admit of delay. You are going to have lots of delay with lots of civil unarmed zones that folks have to keep track of. Best to leave that sort of thing to the self-organizing power of the citizenry as they are best to figure things out on a purely local scale. The State does have the entirety of the State to look out for, after all, and trying to fine tune non-State areas is something best left up to non-State actors.
October 1, 2009, 4:57 amJoel Rosenberg says:
For obvious reasons, I’m not going to go into details, but . . . there are, more or less local to me, some synagogues where at least some of the members do have carry permits, and carry routinely, in accordance with their (and their rabbi’s) interpretation of Jewish law. Under Minnesota law, that’s entirely proper; our carry law doesn’t make assumptions about what a religion’s view on such things is, and leaves it to the synagogue/church/mosque/spaghetti factory to work such things out for themselves.
Other institutions — religious or not — can discourage carry by posting the famous BANS GUNS signs. Two or three churches — I forget; going to church is not a big part of this agnostic Jew’s life — do, because of a successful lawsuit expertly argued by David “Darth” Lillehaug, have the ability to ban carry without using the standard signs, although I’m not sure what language they use, or how passers-by are supposed to understand the signs.
I mean, seriously: is a sign that says BLESSED ARE THE PEACEMAKERS to be reasonably interpreted to mean “Please don’t carry your self-defense firearms in here” or “We endorse Colt Products”?
October 1, 2009, 5:23 amDo church CHL bans violate the First Amendment? « Stuff From Hsoi says:
[...] defense | Tags: Freedom, Guns, Philosophy, RKBA, self defense | David Kopel has an interesting legal analysis of church (or other place of worship) bans on concealed carry. And this isn’t talking about “free speech”…. remember there’s other [...]
October 1, 2009, 5:42 amStephen Goldstein says:
Agree. Seems to me that the Establishment Clause says that the state, in general, is not be concerned with what happens in the church. The lawyers, here on VC, know better than I about case law on certain practices like peyote and Native Americans or Santeria and animal sacrifice which is to say that there are limits to such non-concern.
But this statute works the other way — making activities that are lawful outside the church illegal inside the church.
The statute could prohibit guns in lots of places . . . bars, barber shops, schools which, subject to Second Amendment protests might stand but including churches, in my opinion, in and of itself violates the First Amendment?
This doesn’t mean that carrying guns in church or synagogue is good or that the congregation does not have the right to regulate behavior of the congregants. My position is simply that this is not the state’s business.
October 1, 2009, 6:13 amBasil says:
You are obviously not familiar with the history of this issue in Arkansas. There was an attempt in the legislature to get this restriction removed. It had wide support in both houses, and would have easily passed, and the Governor was ready to sign the bill, but it couldn’t get out of committee because of the lack of one vote from someone who had no opposition to it on principled grounds, but walked out of committee angry because the committee had turned down another piece of legislation he was pushing. More to the point of your mistaken assertion, a long line of preachers and pastors were lined up to speak at the committee hearing in support of removing the prohibition, and letting individual churches decide their policy. My guess is that not only are you wrong that “you are going to find in nearly every actual case that the churches support the ban,” but that in Arkansas at least, it is quite the other way. Even when it looked like the bill was going to pass, there was no organized church opposition against it. All the organized church support was in favor of it.
And as to the final point quoted above, that misstates the situation in Arkansas also. If the prohibition were removed, the church would still have the final word. In Arkansas, any private business or land-owner can forbid concealed carry on private property, and that would include churches. Churches would still be free to prohibit concealed carry if the prohibition were removed. The primary concern the “anti” churches had with earlier versions of the legislation was that it would have treated them like other “public” businesses that must post “no guns allowed” signs. In the legislation that was about to pass, that would not have been required. Churches would not have had to post. It would have been left up to churches to decide what the policy should be, and how to inform their members. So the church would still have had the last word.
IANAL, but it certainly appears to me that this is an issue where the state has stepped in to take sides on a doctrinal issue that churches disagree upon. I am not sure of the full legal implications of the “crowded” nexus that Dave attributes to the AG’s opinion, but as he points out that is a very poor basis for a list of exceptions. I always presumed that the exceptions were based on a “public safety” nexus. From that point of view, I clearly understand the prohibition against allowing concealed carry in bars — guns and alcohol do not go together well at all — and could see how, as a matter of judgment, this might extend to sports venues where alcohol is sold, passions often run hog wild (this is Arkansas, remember), and so forth.
But there is no “public safety” nexus to justify state intrusion into the doctrinal decisions of local churches. Churches are neither less, nor more safe, or less prone to violence, than other places. Actually, I could make the case for churches being more prone to violence than other places, but I’d be stretching, to be honest about it. So let’s be honest and just acknolwedge that there is no “public safety” justification for this prohibition.
In Arkansas at least, it simply reflects a state intrusion into church policy. Again, having some knowledge of the specifics of this issue in Arkansas, the support for maintaining the policy came from a few who were associated with “main line” denominations that tend toward a more pacifistic view of these things. While they have had, in the past, some stronger influence in state government, they are hardly characteristic of the majority of churches in Arkansas, which tend toward more “fundamentalist” theology, and are largely supportive of armed self defense and the right to carry in church.
The bottom line is that the state has no business injecting itself in this matter. That sounds like a “Free Exercise” issue to this non-lawyer.
October 1, 2009, 6:51 amBasil says:
Well, to continue the discussion, the state has chosen to take this right away from churches. Your question is really driving at the heart of the matter. We (the churches that support removing this prohibition) want the right to “permit concealed carry on (our) property the same way (you) could allow a guest in (your) home to carry concealed weapons.” We do not have that right. It has been taken away by the legislation that created the concealed carry law. Churches are prohibited from allowing concealed carry, under the law.
If that restriction where removed, then the situation would be as you describe. The AG opinion is part of an ongoing process in Arkansas to get this prohibition removed. As I explained in the previous reply we (who support removing it) lost in the legislature last time around. Arkansas has a part time legislature that meets for a couple of months every other year. (It is a little more complicated than that, in that there is a meeting, but not of the full legislature, in off years, and the Governor can, and does from time to time, call special sessions.) So until it meets again, the effort to get a favorable AG opinion was just part of the ongoing “lobbying” behind the scenes on this. I haven’t been part of the behind the scenes activity, and was surprised by Dave’s post, and the AG’s decision, because I thought the plan was to get an AG decision based, not on a First Amendment/Free Exercise rational, but on our own State Constitution’s “right to bear arms” provision. I.e., that this is state legislation which is unconstitutional under the state constitution, not the US constitution. I’m going to have to look into this and see what is going on, because this isn’t what I understood the next action would be after the failed attempt in the legislature this year.
October 1, 2009, 7:09 amBoyd says:
“The morality of using deadly force when necessary to protect innocent lives is a strongly debated topic among various denominations.”
In the sense that the people who hold to a radical pacifist belief are very vocal about it, yes, it is strongly debated. But while a position of radical pacifism may be honorable it is not at all common in the Christian Church. Only a very tiny minority hold to this view.
October 1, 2009, 7:19 amSnowflakes in Hell » Blog Archive » First Amendment Case for Defeating a Gun Ban? says:
[...] Kopel makes a pretty compelling case that bans on guns in churches favors some religions over others, and that there may be an establishment clause case to make against [...]
October 1, 2009, 7:42 amOren says:
You obviously never read the case about Kozy Kity Cat litter (Brown v. Pena, 441 F. Supp. 1382 (S.D. Fla. 1977)). The government does, in fact, get to decide what activities are religious in nature. See also: United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct 850, 863, 13 L.Ed.2d 733 (1965), Welsh v. United States 398 U.S. 333, 340, 90 S.Ct 792, 796, 26 L.Ed.2d 308 (1970).
Determining whether a particular activity or belief is a bona-fide religious one is not left solely to the individual, otherwise we would have to accept that firing an employee for eating cat food (which he insisted has very powerful spiritual properties) is religious discrimination. This is a result that I don’t think anyone wants.
October 1, 2009, 7:48 amRandom Nuclear Strikes » Good News/Bad News says:
[...] we did also receive some bad news. An opinion released today by the Arkansas Attorney General says “no.” Like most states, [...]
October 1, 2009, 8:38 amchris says:
Even more interesting is that NC does not have such a law where you would expect it to. I suspect that many of the church bans were in place long before the CHL laws and were simply amended to read “no person shall carry whether openly or concealed” when the CHL laws passed. Or the CHL laws themselves read “a CHL does not authorize you to carry in *** places.” Most laws in NC listing prohibitions on the CHL read exactly like that so it would make sense for other states to do the same thing.
October 1, 2009, 8:42 amLarryA says:
Ewwww. I bet those were interesting arguments.
I think I actually said that it’s up to the church, not the individual. This does raise the problem of religious denominations wanting to pursue activities that are otherwise illegal, for instance drug use and animal sacrifice. The government task there is to determine whether the practice is indeed part of a religion, or whether religion is being used as an excuse to pursue illegal activity. The question is whether this illegal activity should be allowed as part of a religious practice protected by freedom of worship. Results are mixed.
Concealed carry, however, is legal in Arkansas, but prohibited in church. If it’s not “bona-fide religious” then there’s no reason to ban carrying in church that would not apply equally in, say, a movie theater. (As David noted.) Banning carrying in any auditorium assembly (including a church service) might be valid, but limiting the prohibition specifically to a church service should not. At least until there’s a valid argument why carrying specifically in church is a particular problem.
OTOH the argument that church carry should be banned “because you shouldn’t carry in a place of worship,” is a religious argument. Therefore concealed carry becomes a bona-fide religious activity for the purposes of the case. You can’t have it both ways.
I followed the Texas debate from the first proposed bill in 1983 through passage of our CHL law in 1995. The arguments were typical* of those I scanned in other states during the same period.
Generally there was initial opposition to the idea of a CHL from the anti-gun crowd, the major media, law enforcement, and big city government. Predictions of “fender-benders turning into firefights” and “blood flowing in the streets’ abounded. The laws passed reflected compromise with these forces. Churches got included because some major denominations were anti-gun, and there was a presumption (as seen here) that most churches opposed concealed carry. (Note that there’s often a disagreement between what the denomination’s national office says, and what the local congregation does.)
When the law was passed you saw lots of businesses, including churches, posting “no guns” signs because everyone knew that the camo-clad gun-toters would tromp through in their muddy boots, spitting tobacco everywhere and discombobulating the good folks who were there to get on with life. Six months later, when no such thing happened, almost all the signs came down. Within a year businesses, and pastors, figured out that the folks who jump through the hoops for a CHL tend to be their best customers. The media have backed off, law enforcement has largely changed sides, and big-city government has learned to respect gun owners. The anti-gun crowd remains opposed, but are increasingly irrelevant as their predictions and promises continually fail to come true.
* There were basically two situations prior to post-1985 CHL legislation. Some states, including Texas, had no concealed carry. Here, carrying a handgun in public was simply prohibited. In many states open carry was okay but carrying concealed was prohibited.
The other situation, for example Florida, included states with existing discretionary concealed carry laws. Many of these laws, particularly in urban areas, were used to limit licenses to a select few, the politically connected. Those states tended to have very few limits on where a licensee could carry, as only “the right people” were eligible.
After a quick scan and relying on my memory, I think that most states that restrict church carry (as Texas did for the first two years) are the ones that started from scratch.
Probably more than everyone wants to know.
October 1, 2009, 10:12 amHenry Bowman says:
Join us now: The Church of Jeff Cooper of Satter-Day Plinkers. We have branches in 45 states. We don’t proselytize, we Presidenté. We practice our religion through actual practice, in order to gain individual admittance to the sacred A-Zone.
Diligentia, Vis, Celeritas, Amen.
October 1, 2009, 12:15 pmStephen Cutler says:
Paul Nelson suggestions of defense with common articles found in a church AGAINST a firearm attacker remindes me of a line from the untouchables spoken by Sean Connery. “It’s just like a Guinny(Paul nelson) to bring a knife to a gun fight.”
October 1, 2009, 1:28 pmThe point being it is outright stupid to ELECT to fight an attacker armed with a firearm, with anything other than MORE firearms.
Herbstine says:
I wonder if anyone has considered that the CHL ban in churches may be considered state interferance in private property. Churches may be considered as ‘public places’, but they are not owned by the public. They are owned by either their congregation or their denomination. Much like WalMart is a public place, but is not owned by the public, it’s owned by WalMart Stores, INC. It’s private property. So is a church.
October 2, 2009, 7:08 amChurches should be able to make their own decision on carry or not. The state should not have any say.
Episode 5, a bit rushed but its on time. « CarryTalk.com says:
[...] Arkansas: According to the Arkansas Attorney General a ban on concealed carry in churches does not violate the first amendment. The opinion released by the Attorney General does not address the issue of the ban violating the right to arms clause in the Arkansas state constitution nor does it address any second amendment issues. [...]
October 4, 2009, 9:56 pmPaladin says:
I do not practice my religion BECAUSE I am denied the right to go armed and prepared to defend my life. Does that interfere with my religious rights? How about my right to Life, Liberty and the pursuit of happiness. It makes me happy to be able to defend my life and those of my loved ones and is a liberating process which makes me happy.??
To those of you who state we have other items such as “razor sharp Church Bulletins, fists, knives, etc.” with which to defend ourselves in church without the need of a gun, I wish you had been in attendance at the New Life Church when the crazed gunman burst in after killing a father and his two daughters in the parking lot.
If you want to take the chance of defending your and your loved one’s lives with a “razor sharp Church Bulletin” go right ahead. I prefer a gun and won’t attend a church that disallows me the right to defend the life God gave me and my loved ones.
November 14, 2009, 3:47 pmMary Tewell says:
Great information! We have a pet shop in Ankara / Turkey
January 8, 2010, 4:49 pm