The right to bear arms is one of the most hot-button political topics around. The Second Amendment protects the right of people to keep and bear arms. The North Dakota State Constitution thought the right to possess a firearm was so central to North Dakota that its firearm provision is contained in the very first section of the very first article of the Constitution. It literally is the first thing in our Constitution after the Preamble. Our state constitution describes the right to bear arms for self-defense, defense of family, property, and the state, and for hunting, recreational, and other lawful purposes as an “inalienable right” that shall not be infringed. Despite the 2nd Amendment’s language and the language of our State Constitution, the right to bear arms is not absolute. Like many of our constitutional rights, the Supreme Court has held that firearms and their possession may be lawfully regulated under certain circumstances. As a general matter, there are three types of restrictions: those that restrict certain people from possessing firearms; those that regulate certain types of firearms; and those that regulate the time, place and way in which a firearm may be lawfully possessed. While the focus of this article will be on the third type, I will briefly discuss the first two.
State and Federal law has prohibited certain classes of people from possessing firearms for a very long time. For instance, the Supreme Court has recently upheld regulations prohibiting persons convicted of certain types of crimes from possessing firearms. Felons, those convicted of drug offenses or misdemeanor crimes of domestic violence are prohibited from possessing guns. Those who have been adjudicated mentally unfit are also prohibited. Those persons who are subject to a protection order are prohibited from possessing firearms. Federal law prohibits other classes of people, but these are the most common person-based restrictions. Under state law, there are also other restrictions limiting firearm possession to a certain age and potentially requiring parental supervision. In other words, not everyone has the right to possess a firearm, despite the language in our constitutions. Some people have had their rights taken away; others have yet to “qualify” for their right to keep and bear arms. There are, in some instances, ways prohibited persons can regain their rights but those go far beyond the scope of this article.
Second, certain types of firearms may be possessed only by those with special permits and/or tax stamps. Generally, a person cannot possess a machine gun, bazooka or a short-barreled rifle or shotgun. Noise suppressors, or silencers, are restricted. Certain “weapons of war” are banned. Last month, the United States Court of Appeals for the Fourth Circuit upheld a Maryland assault weapon ban, declaring a popular sport shooting platform, the AR-15, was a “weapon of war” left unprotected by the Second Amendment. This case may eventually end up at the U.S. Supreme Court but it has not yet made it there.
Third, and most importantly for purposes of this article, are the restrictions limiting the time, place and manner in which a firearm can be possessed in North Dakota. The most common time/place/manner regulations involve whether a person can carry a “concealed” firearm and where the person can carry a firearm. With respect to the latter, an otherwise non-prohibited person cannot carry a firearm at a liquor establishment, a public gathering, athletic or sporting event, church, school, or a publicly owned and operated building.
Recently, the news has been dominated by North Dakota’s “Constitutional Carry” legislation just signed by Gov. Burgum. This bill, HB 1169, allows North Dakota residents to carry a concealed weapon without a concealed carry permit.
Under our previous state law, there were two types of concealed carry permits: a class 1 license and a class 2 license. To carry a weapon in a “concealed” manner—a manner where the firearm is not “discernable to the ordinary passerby”—a person was required to have at least a class 2 CCW license. The requirements for obtaining the licenses differed depending upon which license was obtained. A class 2 CCW license did not require any special training or expertise. A person needed only to apply for the permit, pass a background check, and pass an open-book test. There was no special gun safety training nor was there any gun proficiency requirements. A class 2 CCW permit holder has limited reciprocity with other states. A class 1 license, on the other hand, requires the license holder to do everything a class 2 license holder had to do, plus receive in-classroom gun safety training and prove the license-holder was proficient with a firearm. This class 1 CCW license is honored in more states—39 in all. Generally, however, a person is still subject to the same restrictions as non-permit holders on where firearms can be lawfully possessed.
The new constitutional carry legislation effectively provides a pass on a class 2 CCW permit for North Dakota residents. The bill allows a North Dakota residents who are at least 21 years old and who can otherwise possess a firearm to carry concealed without having to obtain a permit. There is a lot of information to unpack there. First, the bill applies only to North Dakota residents who have lived in North Dakota for at least a year and has a valid North Dakota issued identification card or driver’s license. All others will either need to apply for at least a class 2 CCW permit or have a permit from another state that is recognized in North Dakota through a reciprocity agreement. Second, it applies only to those who are 21 years old or older. Third, the person’s firearms rights cannot be otherwise impaired. Fourth, the bill does not eliminate the other time/place/manner restrictions. For example, a person without special license or privilege to do so still cannot walk into a bar with a concealed firearm. Finally, if the person comes into contact with law enforcement, the person carrying concealed is immediately required to notify law enforcement of the weapon.
This constitutional carry provision becomes effective August 1, 2017. Until then, unless you have a valid CCW permit, do not carry a concealed weapon! Please also keep in mind, there are still valid reasons to go through the CCW permitting process. The biggest reason is reciprocity. Most states still require a CCW permit of some sort in order to carry concealed. Another important reason is that it offers a way to ensure your rights are not otherwise infringed in some way. Frankly, I have had to tell far too many clients they are prohibited from possessing firearms under state or federal law even though they did not know it. In that sense, going through the background process provides you with an “at least you know” peace of mind. Next, there is an educational benefit to receiving the training a person receives with a class 2 and especially a class 1 license. Laws involving self-defense are extremely complicated and fact-specific. The class helps concealed carriers identify when deadly force is necessary and will be justified.
If you have questions about your rights to carry a firearm—whether it be concealed or not—Nick Thornton at the Fremstad Law Firm can answer your questions. Give him a call at 701-478-7620 or reach him by email at nick@fremstadlaw.com.
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