Concurring Opinion, Case No.22964 In RE: Application of Teresa Jane Dailey for State License to Carry A Concealed, Deadly Weapon

No. 22964 - In Re: Application of Teresa Jane Dailey for State License to Carry A Concealed, Deadly Weapon

Workman, J. concurring:

    I concur with the majority but write separately primarily to clarify that nothing in our opinion precludes the Legislature from expanding on the requirements of the law for a license to carry a concealed weapon, and to urge the Legislature, when it crafts new legislation governing concealed weapon permits, to create reasonable conditions for such a permit.

    While this Court held in State ex rel. City of Princeton v. Buckner, 180 W. Va. 457, 377 S.E.2d 139 (1988), that "the statutory proscription against carrying a dangerous or deadly weapon is overbroad and violative of article III, section 22 of the West Virginia Constitution . . . ," clearly nothing in our constitution entitles one as a matter of right to carry a concealed weapon. Id. at 458, 377 S.E.2d at 140. This fact is quite clearly substantiated in a three page legal memorandum on the proposed constitutional amendment, prepared by an attorney for the National Rifle Association ("NRA") and sent to all members of the West Virginia Legislature prior to the amendment's 1986 enactment, wherein the NRA recognized that "[t]he bearing of constitutionally protected arms may be regulated. Concealed carrying statutes, e.g., are routinely upheld." "Analysis of Proposed West Virginia Constitutional Guarantee to Keep and Bear Arms," reprinted in James W. Neely,

The Right of Who to Bear What, When, and Where -- West Virginia Firearms Law v. The Right-to Bear-Arms Amendment, 89 W. Va. L. Rev. 1125, 1176 (1987); see Stephen P. Halbrook, Rationing Firearms Purchases and the Right to Keep Arms: Reflections on the Bills of Rights of Virginia, West Virginia and the United States, 96 W. Va. L. Rev. 1, 68-69 (1993).

        [c]oncealed weapon permits are issued based on a variety of criteria, such as: (1) the objective or subjective (or both) personal qualifications of the individual; (2) background investigations; (3) fingerprint checks for criminal information; and (4) safety training courses or qualification to use a weapon.

Richard Getchell, Comment, Carrying Concealed Weapons in Self-Defense: Florida Adopts Uniform Regulations for the Issuance of Concealed Weapons Permits, 15 Fla. St. U. L. Rev. 751, 757 (1987). Consequently, in establishing the new legislation regarding concealed weapons permits, hopefully the Legislature will look to other state statutes which combine not only certain objective and subjective requirements, but interject other reasonable conditions as a prerequisite to obtaining the necessary permit. For instance, as the majority noted in footnote 19, supra, the Delaware Legislature not only requires a person to establish certain subjective and objective elements of age, sobriety, good moral character, and a reputation for peacefulness in the community before a concealed weapons permit can be issued, but also provides that "the court 'may or may not, in its discretion, approve any application and, in order to satisfy the Judges thereof fully in regard to the propriety of approving the same, may receive remonstrances and hear evidence and arguments for and against the same, and establish general rules for that purpose.'" Del. Code Ann. tit. 11, § 1441 (a) and (d) (1990).

    I reiterate the same concern I expressed in a dissenting opinion to In re Application of Metheney, 190 W. Va. 692, 441 S.E.2d 655 (1994), does "the state legislature really intend[] for almost everyone to have the right to carry a concealed handgun[?]" Id. at 694, 441 S.E.2d at 657. If this is not the Legislature's intention, then it should clearly indicate that by the enactment of a statute which contains reasonable requirements limiting concealed weapon permits.

    Should the Legislature enact such requirements thereby creating "an act judicial in character," the issuance of concealed weapon permits could then be returned to the courts or could be placed in an administrative agency of state government. See State v. Huber, 129 W. Va. 198, 214, 40 S.E.2d 11, 21(1946). Who the Legislature directs to oversee this process (the judicial or executive branch) is immaterial. The more significant concern is the enactment of reasonable conditions, and hopefully a requirement that a person seeking a concealed weapon permit articulate a legitimate need for the permit before it is issued.