The Strange Career of Mississippi’s Bans on Gun Carrying

A few weeks ago, the Mississippi Supreme Court took another step towards dismantling the state’s legacy of Jim Crow gun control laws. If you had read the Mississippi statutes from that era, they would have seemed quite ordinary in an American context:

1. There was no laws against the open carrying of firearms in most public places.

2. Concealed carry required a special permit.

But in practice, Mississippi forbade all gun carrying, at least for persons whom local authorities wished to prevent from carrying guns. The prohibition was accomplished through two steps: First, concealed carry permits were only granted to persons who were special favorites of whoever was issuing the permits. Nominally, citizens could still open carry, without need for a permit. But the Mississippi courts defined “concealed” carry so broadly as to encompass all normal forms of open carry. See, e.g.L.M., Jr. v. State, 600 So.2d 967 (Miss. 1992); Martin v. State, 93 Miss. 764, 47 So. 426 (1908). As Chief Justice Roy Noble Lee explained in a concurring opinion in the L.M., Jr. case:

One of the first cases I undertook as a young lawyer was the defense of a man charged with carrying a concealed weapon. I thought his defense would be simple and easy until I learned what the statute meant. To my amazement, I discovered that carrying a concealed weapon in whole or in part even meant that a revolver carried in a holster on a man’s hip was a partially concealed weapon, riding a horse with a saddle holster and revolver under a person’s leg violated the statute; and that covering a weapon with feet, hands, or clothing meant that the weapon was concealed under the interpretation of the statute. Conceivably, carrying a revolver suspended from the neck by a leather throng could be partially concealing it. (One Western gunfighter used that method.)

The reasons for the strict interpretation of the statute were that many years ago people carried firearms for their protection—usually partially concealed as in holsters.

In other words, walking down the street with a gun in one’s hand was treated as carrying a “concealed” firearm, since the hand would cover part of the gun. So was carrying a gun in a holster, which covers at least some of the gun. It seems that the only manner in which a person could “openly” carry would be to haul the handgun in a transparent briefcase.

About a quarter-century ago, Mississippi fixed the problem of concealed carry permits, by creating a fair and objective system for the Department of Public Safety to issue such permits. Today, almost all states have a similar system for licensed carry permits. (Exceptions are Hawaii, California, DC, Maryland, Delaware, NJ, NY, Mass., and RI.)

The problem of the de facto ban on open carry still remained. So this year, the Mississippi legislature passed House Bill 2. The bill provided a straightforward definition of what “concealed” carry means:

(4) For the purposes of this section, “concealed” means hidden or obscured from common observation and shall not include any weapon listed in subsection (1) of this section, including, but not limited to, a loaded or unloaded pistol carried upon the person in a sheath, belt holster or shoulder holster that is wholly or partially visible, or carried upon the person in a scabbard or case for carrying the weapon that is wholly or partially visible.

So pursuant to HB 2, if you are walking around with a handgun on an exposed belt holster in your waist, you are not carrying a “concealed” firearm. The definition is common sense; law enforcement officers typically wear sidearms in belt holsters, and everyone can see that they are carrying handguns. The officer’s duty sidearm in a holster is not “concealed.”

But things took an odd twist the day before HB 2 was slated to go into effect. Several officials of Hinds County (part of the Jackson metropolitan area) filed a motion for a temporary injunction, essentially arguing that re-legalizing open carry was bad policy. The motion was granted on the theory that the new statute was unconstitutionally vague.

As pointed out in an article by John Frazer (a former NRA attorney, now in private practice), the new Mississippi definition of “concealed” was similar to the definitions in Virginia, Arkansas, Alabama, Colorado, Idaho, Illinois, Kentucky, Maryland, Missouri, New Jersey Ohio and Wisconsin, Delaware and Florida. Much of the opinion seemed to consist of policy arguments against the new law, rather than a careful analysis of the legal standards for unconstitutional vagueness.

The Mississippi Supreme Court took the case on interlocutory appeal, and rendered a unanimous decision on August 29, upholding House Bill 2. The Supreme Court’s decision was quite terse, leading the reader to infer that either: a. The Supreme Court found the trial court’s reasoning so persuasive that the Supreme Court could not engage it, or b. The Supreme Court fund the trial court’s reasoning so ridiculous that the Supreme Court chose not to waste time refuting it in detail.

Either way, the result marks one more way in Mississippi has decided to discard a legal remnant of Jim Crow, and to instead, in the words of the late Hubert Humphrey, “walk forthrightly into the bright sunshine of human rights.”