This article appeared in Knife Magazine in October 2024
Know Your Knife Laws – What Is Concealed Carry?
By Anthony Sculimbrene, Attorney and Knife Expert
This article is a change in focus. Instead of looking at the effects Bruen (see links below) has had on people’s Second Amendment rights, I will examine another fraught legal topic in Second Amendment law–the definition of concealed carry. After looking into the definition, I can assure you that, like with many things in the law, the harder you look, the less clear things get. Notably, there has been a huge expenditure of resources on getting concealed carry statutes passed but very little effort in defining concealed carry.
One good place to start is what it means to “carry” something. This term is odd because most criminal statutes focus not on carry but on possession. Possession is a much broader term than carry as it could mean both actual possession (which is closer to the definition of carry) and constructive possession, which means that a person can exercise control over an object in an immediate fashion. On the other hand, carry means something like – to support while moving or to take from place to place. A good analysis of the distinction between possession and carry can be found in Simpson v. United States AG, 7 F.4th 1046, 1053-1054 (11th Cir. 2021); see also Rodriguez v. State, 174 So.3d 457, 458-459 (2015). Put another way, if you carry something, you certainly possess it, but not all kinds of possessions count as carrying an object. Across the country, this analysis of the difference between carry and possession seems to hold. This is not where things get complicated. That comes with the next word in the phrase.
“Concealed” in Simpson is taken from a Florida statute that defines concealed as carrying a weapon in a manner that makes it not visible “from the ordinary sight of another person.” That definition is not particularly helpful. For example, does it count if someone is wearing a neck knife and the ball chain is visible, but the knife is tucked down a shirt? Does a pocket clip count? What if the person is wearing a single tight t-shirt and the outline of the neck knife is plainly obvious even though the knife is covered up? Is the focus of the analysis whether any part of the object is visible or whether the object’s nature as a weapon is apparent? This definition does not give us a lot of guidance. One case, Weintraub v. State, 352 Ga. App. 880, 890 (Ga. Ct. App. 2019) explores this problem. Some definitions of conceal focus on hiding something or keeping it secret, but others focus on “prevent[ing] disclosure or recognition of…” an item. Id. The problem is that there is no real way to resolve this dueling definitions problem.
Another definition of “concealed” that has been used is an intent to hide or keep from observation. See Ex parte McPherson, 2022 Tex. App. LEXIS 180, 20 (Jan. 12, 2022). This definition shifts the focus from what can be seen to the carrier’s intent. In McPherson, the court found that the item (in this case, drugs, not a weapon) was not concealed because there was no evidence that the defendant sought to hide it. The intent-to-hide definition avoids much of the ambiguity arising from “conceal” definitions that focus on visibility. Instead of worrying about what was seen and by whom and what they understood the visible part to be, the intent-to-hide definition of concealment just looks at the facts and makes inferences from them. A knife clipped to a pocket would not be concealed under this definition as it was being carried as the design intended–that is, there was no evidence of an intent to hide. A knife placed in the hollowed-out sole of a shoe would, of course, clearly count as concealed, as would one stowed under a car seat or hidden in a body orifice. Another advantage of the intent-to-hide definition is that it does not criminalize exceptionally common behavior, like carrying a pocket knife in a…wait for it…pocket. Illinois has used a similar definition of concealment, where the focus of the analysis is not on what is hidden from view but instead on evidence showing an intent to “withhold knowledge” of the item. People v. Comage, 241 Ill.2d 139, 144 (Ill. S.Ct. 2011).
Despite billions of dollars and countless hours spent on political campaigns regarding concealed carry laws in the US, there is little legal consistency about what counts as concealed carry from state to state. Many jurisdictions have definitions similar to those in Florida. Those definitions are almost unworkable in close cases and result in legal rulings that read like a Buddhist koan (“What is the sound of one hand clapping?”). The intent-to-hide definitions are both more workable in legal matters and tend to follow common sense intuitions about good and bad behavior with knives and other tools of self-defense. Pocket knives, by definition, are carried in a pocket, but turning millions of people into criminals for common, safe behavior seems like a law that has gone astray. This intent-to-hide definition would not only be better for knife owners and courts, but it also touches on a safety issue–some weapons are safer when carried in a way that is hard for others to access or prevent accidents. However, these safer carry methods often conflict with laws that define concealment as “hidden from view.” By using an “intent-to-hide” definition, states and the federal government could still criminalize bad behavior without unnecessarily impacting lawful carry or creating unnecessary dangers.
Bruen Primer for Knife Owners
Bruen Decision – A First Glance
Who is Covered in Bruen?
The Ripple Effects of Bruen Continue