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WHY WE CAN’T DRINK IN PEACE: Alcohol, place-based violence, concealed carry, & HB 937

North Carolina’s taverns used to be so dangerous, even buying a round of drinks was a

risky undertaking. As Robert Parker Nash explains, back in the 19th Century, what would strike

us today as a benevolent gesture was often an invitation to a rough-and-tumble form of barroom

brawling that reflected class and ethnic tensions and the need to distinguish oneself within the

South’s strict honor culture.1 Eager to prove their status and bravery, free white men trapped in

the poorer rungs of the economic ladder frequently resorted to the local tavern to out-drink, out-

brag, and out-fight one another. In that environment, buying a round of drinks demonstrated the

buyer’s power and generosity, accepting such a drink was good manners and “symbolic of

membership in the group and equality,” but refusing to raise your glass was an insult “because it

implied that the refuser was superior to the buyer.”2 Fueled by heavy drinking, the rough-and-

tumble fights that followed such refusals grew so common, and so violent, that North Carolina

was among several states to pass laws against “premeditated mayhem,” which included “cutting

out tongues, pulling, gouging, or plucking out eyes, biting or cutting off noses, or stomping.”3

Times have changed an awful lot since the 19th Century, but the safety of North

Carolina’s drinking establishments remains a subject of public concern. Nationwide statistics

available from the U.S. Department of Justice reveal a clear link between alcohol and violent

crime: between 1997 and 2008, roughly forty percent of robbery, assault, and violent crime

victims perceived their attackers were under the influence of alcohol.4 While only “a relatively

1 See ROBERT NASH PARKER, ALCOHOL AND HOMICIDE (1995). 2 Id. at 14–15 (“Given the deadly seriousness with which insult was regarded in the male honor complex, buying and accepting drinks was a highly charged process that could explode in violence at a moment’s notice. Any existing tensions between rival groups could be brought to a head by the ritualized offering and refusal of drinks, making bars dangerous places to frequent.”). 3 Id. at 13. 4 See BUREAU OF JUSTICE STATISTICS, ALCOHOL AND VIOLENT CRIME DATA FROM 2002–08, U.S. DEP’T OF JUSTICE, at 22 (June 2010), http://www.bjs.gov/content/acf/ac10.pdf. In a related vein, surveys of jail and prison inmates over

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small proportion of alcohol-related violence occurred in bars,”5 criminological studies illustrate

that both individual-level alcohol consumption and city and neighborhood-level alcohol

availability correlate with increased rates of victimization.6

In 2013, the General Assembly enacted HB 937, which liberalized the state’s restrictions

on the right to bear arms by expanding the scope of public places where it is legal to carry a

concealed firearm. Notably, the bill included a provision legalizing “restaurant & bar carry,” thus

allowing concealed carry permit holders to take their guns to the town watering-hole, so long as

they refrain from drinking. The law included an “opt-out” provision to allow merchants to

prohibit concealed carrying by clearly posting a sign. This paper argues that restaurant & bar

carry is bad policy, regardless of whether or not the new law results in a bloodbath. Part I

examines restaurant & bar carry and its legislative history. Part II describes recent trends in

“place-based” criminological studies analyzing the relationship between alcohol, violence, and

local geography. Part III interrogates the rationales advanced in favor of restaurant & bar carry

and finds reasons for skepticism. Part IV first explores the question of what sort of person would

go to a bar and not drink. It ultimately concludes that by adopting a “one-size-fits-all” approach

to what criminological research indicates is actually a local problem, the General Assembly

ignored the potential for collaborative solutions between local authorities and private merchants

and instead enacted a law implicitly premised on a statistically unreliable theory of deterrence.

I. NC’s New Restaurant & Bar Carry Law

A. HB 937 and Concealed Carry in NC the same period reveal that nearly one third of state offenders and almost twenty percent of federal offenders admitted to being under the influence of alcohol when committing their crimes. Id. at 29. 5 Id. at Conclusion; see also id. at 20. In terms of the locations of violent incidents, higher percentages occurred at home, in domestic violence contexts, or on public highways and streets, often in the context of drunk-driving. 6 See, e.g., ROBERT NASH PARKER, ALCOHOL AND VIOLENCE (2013), at 15. As Parker notes, the simple act of leaving one’s home at night for an evening of socialization raises the risk of victimization, while alcohol inhibits awareness of one’s surroundings, which further increases one’s level of risk. For further discussion of the effects of alcohol consumption and availability on crime victimization, see Part II.

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Prior to HB 937’s enactment in 2013, N.C. Gen. Stat. § 269.3(a) provided, in relevant

part, that:

It shall be unlawful for any person to carry any gun, rifle, or pistol into any assembly where a fee has been charged for admission thereto, or into any establishment in which alcoholic beverages are sold and consumed.7

Violations of the statute were considered Class-1 misdemeanors, but subsection (b) provided

four exceptions from criminal liability applicable to a limited range of individuals.8 While

retaining the original statute’s structure and most of its language, Section 3 of HB 937 tacked on

a new fifth exception to subsection (b), which now protects “[a] person carrying a handgun if the

person has a valid concealed handgun permit.”9 However, the same provision does allow

business owners to “opt-out” by posting “a conspicuous notice prohibiting the carrying of a

concealed handgun on the premises.”10 Moreover, even in establishments that allow their patrons

to pack heat, it remains illegal to consume any alcohol while carrying a concealed handgun, and

HB 937 increases the penalty for violating this prohibition.11

Carrying a concealed handgun has been legal in North Carolina for nearly two decades,

since the General Assembly enacted a “shall-issue” permitting scheme in 1995.12 This means

that to obtain a concealed carry permit, a gun owner in North Carolina must apply to his county

sheriff, who has no discretion to deny the application so long as the individual meets the

7 N.C. GEN. STAT. § 14-269.3(a) (2012). 8 Id. at § 14-269.3(b). These included the establishment’s owner or leaseholder, hired security guards, people carrying guns with the owner’s permission as part of an organized event, and law enforcement officials. 9 See SL 2013-369 at § 3 (amending N.C. GEN. STAT. § 14-269.3). 10 Id. 11 See N.C. GEN. STAT. § 14-415.11(c); SL 2013-369 at § 16(a1). 12 See William F. Lane, Public Endangerment or Personal Liberty? North Carolina Enacts a Liberalized Concealed Handgun Statute, 74 N.C. L. REV. 2214 (1996). As Lane explains, while North Carolina’s state constitution explicitly authorizes the state legislature to restrict the carrying of concealed firearms, HB 90 was in keeping with broader nationwide trends in state-level gun legislation, which many have attributed to a wave of popular concern over violent crime and the Clinton Administration’s enactment of tighter federal gun control regulations. Id. at 2233.

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statutory qualifying criteria, which primarily consist of passing a background check, completing

a firearms training and safety course, and paying an eighty dollar application fee.13

With the enactment of HB 937, the General Assembly further liberalized North

Carolina’s firearms restrictions by significantly expanding the scope of where permit-holders can

lawfully carry their concealed handguns.14 Besides restaurant & bar carry, that scope now

extends to parades and funeral processions;15 municipal playgrounds and greenways, including

walking and bike paths;16 and even onto public school grounds and into state government

parking lots as long as permit-holders leave their guns “in a closed compartment or container”

inside their locked vehicles.17

B. Legislative History

13 See N.C. GEN. STAT. § 14-415.12. The statute also requires U.S. citizenship, with at least thirty days of in-state residency, and applicants must submit their fingerprints to the SBI and undergo a mental background check. Id. Grounds for denying an application include prior felony convictions; pending felony indictments; convictions for certain violent misdemeanors; adjudications of mental unfitness; dishonorable discharge from the military; unlawful use of or addition to alcohol, marijuana, or controlled substances; and convictions for impaired driving offenses within the past three years. Id. Permits are valid for five years, but can be revoked if the holder commits any offense that would have disqualified him from obtaining one in the first place. Of course, before an individual can apply for a concealed carry permit—or even legally purchase a handgun—North Carolina law requires that he must first obtain a pistol permit from the county sheriff. 14 See Jeff Welty, Gun Bill Poised to Become Law, NORTH CAROLINA CRIMINAL LAW: UNC SCHOOL OF GOVERNMENT BLOG (July 24, 2013), http://nccriminallaw.sog.unc.edu/?p=4371. As Welty explains, the seeds for HB 937’s expansion of concealed carrying into public and private spheres more typically associated with “leisure” were sown in 2011 by the passage of SL 2011-268 (amending N.C. GEN. STAT. 14-415.23). That bill received more attention for expanding North Carolina’s self-defense law under the Castle Doctrine, but it also declared the General Assembly’s intent “to prescribe a uniform system for the regulation of legally carrying a concealed handgun” and barred local municipalities from prohibiting the practice on most public property. See Jeff Welty, Guns in Parks, NORTH CAROLINA CRIMINAL LAW: UNC SCHOOL OF GOVERNMENT BLOG (Sept. 26, 2011), http://nccriminallaw.sog.unc.edu/?p=2913 15 See SL 2013-369 § 15 (amending N.C. GEN. STAT. § 14-415.23). 16 Id. at § 6 (amending N.C. GEN. STAT. § 14-277.2). 17 Id. at § 1 (amending N.C. GEN. STAT. § 14-269.2). Additionally, as enacted, HB 937 now requires sheriffs to provide detailed written explanations of their reasons for refusing to grant a handgun or concealed-carry permit, and

reduces the amount of time they have to determine whether to approve or deny a permit from thirty days to fourteen, see id. at §17.2(a) (amending N.C. GEN. STAT. §14-404), and it also expedites the process for restoring the rights of individuals who have been civilly committed or adjudicated mentally unfit for firearm ownership, id. at § 9 (amending N.C. GEN. STAT. § 122C-54.1). While it also included tougher sentencing guidelines for certain gun crimes, on the whole, the new law is more about expanding Second Amendment liberties than crime control—unless, as discussed below, one believes that the former is an important step towards dealing with the latter.

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The legislative history of HB 937’s restaurant & bar carry is murky. The bill’s plain

language does not offer any indication of studies conducted or evidence considered, and the

official committee report on the law only addressed the budgetary impact of unrelated provisions

on the state’s prisons.18 The minutes from the House judiciary subcommittee meeting where it

was introduced are cryptic and largely uninformative.19 The juiciest revelation details an

amendment proposed by Representative Darren Jackson (D – Wake Co.), which would have

required servers at all establishments that choose to allow firearms to ask patrons who order

alcohol whether or not they are carrying a concealed weapon.20 The amendment was defeated

after Frank Gray of the N.C. Restaurant Association spoke in opposition to it.21

Prior to its enactment, several of HB 937’s other provisions proved far more controversial

than restaurant & bar carry. Most notably, the “public school” provision drew opposition from

the N.C. Association of Chiefs of Police and the heads of security at all seventeen campuses in

the UNC system.22 Before its passage, the bill sparked broader public debates about public

safety, protecting the Second Amendment, and overreach by the General Assembly’s

18 See HB 937 Legislative Incarceration Fiscal Note, http://www.ncleg.net/Sessions/2013/FiscalNotes/House/PDF/HIN0937v1.pdf 19 As it turns out, North Carolina does a somewhat lackluster job when it comes to legislative history. The General Assembly’s website posts all drafts and versions of proposed, pending, and passed legislation, including amendments, but there is typically very little available when it comes to committee hearings and floor debates, unless a study of the bill’s economic impact is necessary. The minutes of most committee hearings are available in hard copy at the state’s legislative library in Raleigh, but these are generally bullet-pointed summaries. See, e.g., HB 937 – Amend Various Firearms Laws, House Committee on Judiciary, Subcommittee A, Minutes (Apr. 24, 2013), 1228/1327 (“[The bill’s sponsors] offered explanations of various sections of the bill, offering detailed explanation of certain areas of which must interest has been expressed.”). 20 See id. at Subcommittee A, amend. 4. Rep. Jackson opposed HB 937, and this amendment may well have been intended as something akin to a “poison pill,” one that if passed might improve safety but would have the primary effect of making business even more complicated for merchants who allow concealed carry by turning every drink order into an awkward reminder of the new law, at the risk of alienating patrons with views on both sides of the issue. For discussion of how Rep. Jackson’s amendment illustrates problems with the enforcement of restaurant & bar carry, see Part III-A. 21 Id. As Bray explained, “the Association had no objection to the bill as written.” 22 See Craig Jarvis, NC bill would do away with handgun permits, RALEIGH NEWS &OBSERVER (June 11, 2013), http://www.newsobserver.com/2013/06/11/2955048/nc-bill-would-do-away-with-handgun.html. In a related vein, an early draft of HB 937 would have eliminated the statewide statutory requirement that people seeking to purchase handguns first obtain a pistol permit purchase from their local sheriff, but that provision was dropped after objections from Attorney General Roy Cooper and the N.C. Sheriff’s Association. See id.

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emboldened GOP majority.23 But restaurant & bar carry only garnered significant media

attention months after Gov. Pat McCrory signed HB 937 into law, with a barrage of news stories

published just before its provisions took effect on October 1, 2013.24 These articles followed a

similar formula. While gun rights supporters defended the right to bear arms by emphasizing: (a)

the law-abidingness of concealed carriers, and (b) the lack of a bloodbath in other states with

similar laws, a general consensus emerged—shared by restaurant owners and gun control

advocates and the N.C. Association of Chiefs of Police—that “alcohol and guns don’t mix.”25

II. So A Criminologist Walks Into A Bar . . .

The trend in criminology over the last two decades is towards a place-based, ecological

approach to studying the complex web of relationships between alcohol and its effects on both

individual aggression and overall crime victimization. The underlying premise is that crime can

be understood as a triangle that depends on three variables: motivated offenders, victims, and

guardianship (or lack thereof), but these are all influenced by a wide array of environmental

factors and routine activities that shape their opportunities for interaction.26 In this story, humans

are not the only actors—the settings, whether individual bars or broader neighborhoods, can be

equally vital, so to solve (or even define) the problem of alcohol and crime, we must also

understand the context in which both drinking and violence occur.

23 See Editorial, The wrong direction on gun legislation: Bill makes clear who doesn’t have the ear of NC lawmakers, CHARLOTTE OBSERVER (June 13, 2013). While these debates tended to break down along partisan lines (and were sometimes subsumed by fiercer arguments about broader trends in the General Assembly this session that culminated over the summer with the NAACP’s increasingly large weekly Moral Monday protest campaign), polls by Elon University indicated that a “majority of North Carolinians agree that ‘there should be more legal restrictions on handguns in our society.’ ” Id. 24 See, e.g., Kelly Poe, When Guns, Bars Mix—Club owners and patrons are wary of new law that will begin Oct. 1, GREENSBORO NEWS & RECORD (Aug. 18, 2013); Tough decision: Allow guns or not?, MORGANTON NEWS HERALD (Sept. 22, 2013); Gregory Phillips, New Law to Allow Guns in Bars, FAYETTEVILLE OBSERVER (Sept. 29, 2013). 25 See, e.g., Laura Oleniacz, Firearms Law Changes Today for Restaurants, Bars Serving Alcohol, DURHAM HERALD-SUN (Oct. 1, 2013). For further discussion of the continuing clash between North Carolinians Against Gun Violence and Grass Roots North Carolina, see Part IV. 26 See, e.g., CATERINA G. ROMAN ET. AL., ALCOHOL OUTLETS AS ATTRACTORS OF VIOLENCE AND DISORDER: A CLOSER LOOK AT THE NEIGHBORHOOD ENVIRONMENT, URBAN INSTITUTE, Apr. 30, 2008, at 5–15.

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A. Alcohol and aggression at the barroom brawling level

Alcohol functions as both a stimulant and a depressant, and its intoxicating physiological

effects can result in aggression by lowering a drinker’s inhibitions, increasing his self-

confidence, reducing his ability to evaluate the consequences of his actions, and increasing the

likelihood of an impulsive or emotional response to provocation.27 Graham and Wells

demonstrate how the environmental and cultural contexts of drinking in bars can exacerbate

these effects in their study of male aggression through a survey of self-reported barroom

brawlers.

Bars are often crowded (which increases discomfort and can result in forced interactions

with strangers) and understaffed (which makes it difficult both to monitor the risk of over-

consumption and to control rowdiness), which provides a recipe for a potentially violent

environment. Most subjects reported going to bars for “time-out,” rather than to actively seek-out

fisticuffs, but Graham and Wells found that most recognized bars as potentially dangerous places

where an implicit “honor” culture pervades.28 While some fights were rooted in the desire to

settle an old grudge, many others arose out of perceived slights and insults, real or imagined.

From an analytical standpoint, the authors note that these dynamics can make it difficult to

define who is an aggressor and who is a victim, since the “loser” of a fight is just as likely to be

the one who instigated it, and friends of both parties frequently joined in the fracas to defend

their comrades.29 But the prevailing theme that emerged from their survey was the importance of

maintaining one’s social status: suffering disrespect (whether in the form of a clever insult or an

accidentally spilled drink) in front of one’s friends or a potential romantic partner led to acts of

27 See Kathryn Graham and Samantha Wells, Somebody’s Gonna Get Their Head Kicked-in Tonight: Aggression among young men in bars—A Question of Values? 43 BRITISH JOURNAL OF CRIMINOLOGY 546, 547 (2003). 28 Id. at 551–54. The study was based on interviews with Canadian males in their early-twenties who reported recent involvement in bar fights. “Time-out” here means relaxation or socialization with friends. 29 Id. at 556–59.

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face-saving aggression. Several subjects admitted their intoxication loosened their tongues,

shortened their tempers and impaired their judgment, leading them to myopically overlook the

consequences of their words and actions, overestimate their own abilities, and take risks they

would otherwise avoid if sober.30 But drunkenness aside, even in retrospect, most subjects

viewed fighting as a rewarding experience with only minor downsides: the rush of adrenaline,

the feeling of satisfaction from proving one’s bravery, and group-bonding outweighed the risk of

injury or criminal charges. When one’s own status and social acceptance was at risk, many

viewed brawling as obligatory, even noble.31

B. Neighborhood-level studies

The Urban Institute’s recent study of the impact of alcohol availability on crime at the

neighborhood level in Washington, D.C.,32 illustrates that to measure how dangerous it is to go

out drinking in a bar, analysis should focus not only on its specific attributes, but also extend to

the broader cumulative effects of all the other alcohol sales outlets nearby. Over the last two

decades, criminological studies examining individual American cities typically found that city-

blocks with higher concentrations of taverns tend to attract more crime than blocks with lower

concentrations, and that clusters of establishments that sell or serve alcohol can create “hotspots”

for violence.33 Of course, all violence is driven by local factors, and density alone does not

necessarily mean “dangerousness;” different crimes tend to occur in different parts of cities,

30 Id. at 552. 31 Id. at 559. However, Graham and Wells conclude that this type of hyper-macho drinking culture is not necessarily inevitable, and argue that changes to the drinking environment (for example, better staffing practices to monitor consumption levels and prevent fighting) and the values of young drinkers (they cite, for instance, the pronounced attitudinal and behavioral shifts caused by successful public relations campaigns aimed at curbing drinking and driving) can help reduce aggression and make bars safer. 32 See ROMAN ET. AL., supra note 26; see also Sam Bieler & John Roman, Addressing Violence and Disorder Around Alcohol Outlets, D.C. CRIME POLICY INSTITUTE, Jan. 30, 2013 (summarizing Roman’s 2008 report). 33 See generally, e.g., PARKER, supra note 1. Parker’s pioneering study compared alcohol outlet density with local homicide patterns in dozens of cities to contend there is a nationwide correlation between increased availability of alcohol and rates of violent victimization.

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influenced by factors ranging from a neighborhood’s reputation to its level of poverty to its

public transportation options.34 Despite a host of methodological complications,35 recent

innovations in data technology have enabled researchers to focus their analyses with increasing

precision on individual neighborhoods, city-blocks, and census tracts, which can help to both

identify and alleviate risks of violence associated with alcohol and bars.

The Urban Institute provides an intriguing case study for the benefits of such narrowly

tailored place-based investigations. Using census data to control for a range of demographic

factors unique to each neighborhood, combined with 911 calls, police reports, and analyses of

each drinking establishment’s policies for maintaining order, this block-by-block study

demonstrates that in most D.C. neighborhoods, the number of aggravated assaults increased

based on the availability of alcohol as measured by the number and density of bars therein. The

problem was most acute late at night on the weekends, especially at most bars’ closing times.36

34 See, e.g., Richard L. Block & Caroline R. Block, Space, Place, and Crime: Hot Spot Areas and Hot Places of Liquor-Related Crime, in CRIME AND PLACE (John E. Eck & David Weisburd eds., 1995), at 145. 35 These include deciding how “violence” is defined in determining what sort of crime to measure (e.g., homicides only vs. aggravated assaults vs. all forms of public disorder) and what sort of sources to rely on (e.g., police reports vs. interviews with victims/perpetrators at hospitals/jails vs. 911 calls). 36 See ROMAN ET. AL., supra note 26. The fact that crime increases near closing time is unsurprising, since the flocks of drunken patrons who flood the streets then are, given their inebriation: (a) less aware of the risks of falling victim to robberies or assaults, and (b) also more likely to engage in violent and disorderly conduct themselves. Id. Interestingly, the study found no increased risk of victimization at or emanating from restaurants or nightclubs—at least in D.C., it appears bars are driving the danger. The study also found no correlation between on-premise or on-the-street assaults at or near stores that sell alcohol for off-premise consumption. However, it did find the density of off-premise stores in a neighborhood tends to correlate with the number of domestic violence incidents, especially on weekdays. This contrasts with the results of recent studies measuring the relationship between off-premise density, alcohol consumption, and the risk of gunshot victimization in Philadelphia and Chicago. The Philadelphia study found that while heavy drinkers are more likely to get shot than non-drinkers, the risks for both increased significantly in neighborhoods with more off-premise liquor stores. See Charles C. Branas et al., Alcohol Consumption, Alcohol Outlets, and the Risk of Being Assaulted With A Gun, 33 ALCOHOLISM: CLINICAL & EXPERIMENTAL RESEARCH 906 (May 2009). The authors hypothesized this can be explained by lax staffing practices, higher ABV percentages, and the surrounding neighborhoods’ higher overall crime rates. These results are in keeping with a 2013 study by Northwestern University School of Medicine professor Marie Crandall, who found that in impoverished neighborhoods on the West and South sides of Chicago, simply standing close to a liquor store or tavern can increase the likelihood of getting shot by up to 500%. See Maria Paul, 500 Times More Likely To Be Shot, Northwestern University: News (Sept. 19, 2013), http://www.northwestern.edu/newscenter/stories/2013/09/500-times-more-likely-to-be-shot.html (describing the findings of Dr. Crandall’s study, which to my knowledge have not yet been formally published). The difference between these findings and the Urban Institute study can likely be explained by their different scopes/metrics (i.e. –

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The Urban Institute study offered a wide array of recommendations for reducing rates of

alcohol-related crime and violence; while some targeted practices and behaviors individual

merchants can control, others focused on the level of municipal or community action. For

instance, bars can decrease their patrons’ levels of intoxication by raising drink prices,

decreasing portion sizes, serving food, and training servers to cut-off intoxicated patrons.37

Bouncers can be trained to monitor potential conflicts and intervene before they escalate, and the

architecture of the bar itself can be adjusted in subtle ways that reduce risks by eliminating blind

spots and minimizing overcrowding.38 The study also highlighted the need to stagger closing

times to avoid post-last call altercations. This broader policy recommendation highlights the

need for more involvement from municipal authorities, not just in terms of increasing police

presence in “hotspots” to protect potential victims but also by adopting more stringent licensing

schemes for establishments that serve alcohol, in the hopes that stricter monitoring will increase

the incentive for taverns to make their patrons behave lawfully and identify (for license

revocation) chronic violators who make the neighborhood more dangerous for everybody.39

Thus, through cooperation between merchants and local authorities, the goal is to address all

three sides of the crime triangle—guardians, victims, and offenders—and the broader

environment where they interact.

C. Implications for North Carolina?

At present, there is scant data available for specifically analyzing statewide trends in

alcohol-related crime or bar-related violence.40 While the Urban Institute’s recommendations

choosing to focus on gun-shots specifically, rather than violent crimes more generally), as well as the integral importance of local factors, specific to each city. 37 See ROMAN ET. AL., supra note 26, at 94–101. 38 Id. 39 Id. 40 The N.C. Department of Justice’s 2012 statistics on crime break down arrests by offense, city, and county, but apart from a category for “disorderly conduct,” they offer little insight into how the raw numbers are influenced by

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reflect conditions in D.C. and thus may be too place-specific to serve as a magic bullet, the

study—especially its focus on factors driving violence at the local level—could still be

instructive for North Carolina policymakers. Our state’s mix of urban, suburban, and rural

settings all present unique circumstances and challenges. The types of drinkers and crimes

common along Franklin Street in Chapel Hill may vary wildly from those found in downtown

Durham, and what works in Raleigh might not work in Wilkesboro. The criminological literature

suggests that local, neighborhood-level differences matter significantly, and that the most

successful approaches to understanding and mitigating the risks of alcohol and bar-related

violence will take specific, place-based factors into account while fostering cooperation by

municipal authorities, law enforcement, and private bar owners.41

III. Rationales for Restaurant & Bar Carry and Reasons for Skepticism

Unfortunately, the General Assembly seems to have ignored the criminological place-

based approach in favor of a less comprehensive, more individualistic “one-size-fits-all”

solution. Instead of focusing on collaboration between those who can most easily influence the

environmental contexts to decrease opportunities for offenders, the new law arms potential

victims to turn them into self-selected guardians, then hopes for the best. Thus, restaurant & bar

carry represents the injection of a new, potentially unpredictable element into the alcohol-and-

violence equation. Perhaps this solution is unsurprising, since based on HB 937’s murky alcohol, its availability, or the setting for its consumption. See Crime in North Carolina–2012, N.C. DEPT. OF JUSTICE, Sept. 2013, http://crimereporting.ncdoj.gov/public/2012/ASR/2012%20Annual%20Summary.pdf. The N.C. Alcohol Law Enforcement agency also keeps statistics, but its focus is on preventing drunk-driving and underage drinking. See Statistics, N.C. DEPT. OF PUBLIC SAFETY, https://www.ncdps.gov/index2.cfm?a=000003,000005,000271. Even at the national level, most of the concern over drinking and violence tends to focus more on domestic violence contexts, or drunk-driving, rather than on crime risks associated with consumption at bars and restaurants. See, e.g., Alcohol and Crime, NATIONAL COUNCIL ON ALCOHOLISM AND DRUG DEPENDENCE, http://www.ncadd.org/index.php/learn-about-alcohol/alcohol-and-crime. 41While the crime patterns in N.C. bars have not yet been comprehensively studied and may differ from those in D.C., the point here is that they can be examined. Following the Urban Institute’s methodology, researchers could utilize census and GIS data, in combination with police reports, 911 calls, and victim interviews, to chart out detailed maps of neighborhood and municipal hotspots. They could also focus at the individual bar level to gauge what environmental adjustments might improve patron safety.

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legislative history, it is unclear to what extent the General Assembly ever studied or even defined

the problem it set out to remedy. Nonetheless, state media reports offer some insights into the

rationale behind restaurant & bar carry,42 and two specific themes emerge from interviews with

HB 937’s sponsors and supporters. However, both of these are open to criticism.

A. “Law-abiding Citizens”

“Generally,” contends one of HB 937’s primary sponsors Rep. John Faircloth (R –

Guilford Co.), “you’ll find that people who go to bars and feel they want to carry their guns are

not criminals.”43 According to Rep. Faircloth, concealed carriers are simply exercising their

constitutional right to bear arms in self-defense and can be trusted to abide by the new law’s

strict prohibition against consuming alcohol because they have already passed extensive

background checks.44 As N.C. Sherriff Association President Eddie Caldwell joked in support of

the law, concealed carriers “cherish their permit more than their dog, more than their spouse.”45

However, there are reasons to doubt the premise that restaurant & bar carry will prove

trouble-free just because concealed carriers are all law-abiding citizens. For example, a 2011

New York Times investigation found that in North Carolina, “[m]ore than 2,400 permit holders

[had been] convicted of felonies or misdemeanors, excluding traffic-related crimes,” in the last

five years, and “more than 200 permit holders were also convicted of gun- or weapon-related

felonies or misdemeanors, including roughly 60 who committed weapon-related assaults. In

42 Although the bill’s sponsors and proponents were unavailable for interviews, the statements they have provided to journalists provide a revealing window into restaurant & carry’s rationale. 43 See Poe, supra note 24. 44 Id. The logic here is that nobody would submit to such a prolonged and intrusive process unless they deeply valued the right to carry a concealed handgun, and since drinking while carrying is grounds for revocation, Rep. Faircloth predicts that “most gun owners would never risk it,” and thus dismisses concerns as “very overblown.” Guilford County Sheriff B.J. Barnes made a similar point when explaining that restaurant & bar carry was unlikely to change very much because “[t]he problems we’ve seen with guns in bars before were not legal in the first place,” and thus the only real difference was that the new law would not “turn law-abiding citizens into criminals.” Id. 45 Lisa Sorg, Concealed carry permit holders can now bring guns into restaurants and bars. What could go wrong? INDYWEEK (Oct. 23, 2013), http://www.indyweek.com/indyweek/conceal-carry-permit-holders-can-now-bring-guns-into-restaurants-and-bars-what-could-go-wrong/Content?oid=3749314

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addition, nearly 900 permit holders were convicted of drunken driving, a potentially volatile

circumstance given the link between drinking and violence.”46 The Washington, D.C.-based

Violence Policy Center has documented hundreds of criminal incidents involving concealed

carriers nationwide since 2005, including five shootings in North Carolina that killed a total of

ten victims.47 While the aforementioned 2,400 convicted permit-holders admittedly accounted

for less than one percent of the overall number of concealed carriers statewide at the time of the

New York Times study, in raw terms, it remains a significant number of people, given that it only

takes one loose cannon to ruin an evening at the neighborhood tavern. And the number of

concealed carriers in the state has since increased, with 2013 statistics showing 379,000 North

Carolinians holding valid permits, while 6,600 applications were denied and 2,300 permits have

been revoked.48

If the number of concealed carriers who aren’t so law-abiding rises correspondingly, that

may be especially bad news according to two recent articles in the journal Injury Prevention that

deal specifically with the relationship between guns and alcohol. In one, medical researchers

conducting a multi-state survey found that “firearm owners were more likely than those with no

firearms at home” to drink heavily on a regular basis, and results indicated that “heavy alcohol

use was common among firearm owners who also engaged in behaviors such as carrying a

firearm for protection against other people.”49 Another study, measuring alcohol’s effect on

46 Michael Luo, More Concealed Guns, and some are in the wrong hands, N.Y. TIMES (Dec. 28, 2011). The study focused on North Carolina because it was one of the few “shall issue” states where concealed carry permits were a matter of public record. Perhaps ironically, HB 937 enacted a provision rendering all permitting information confidential and exempt from public records requests. SL 2013-369, §12 (amending N.C. Gen. Stat. § 14-415.17). 47 See Sorg, supra note 45. 48 Id. 49 Garen J. Wintemute, Association between firearm ownership, firearm-related risk and risk reduction behaviors and alcohol-related risk behaviors, INJURY PREVENTION (2011). While the study did not address concealed carry permit holders specifically, it did conclude that a link exists between alcohol-related risk behavior and firearm-related risk behavior. It also found that correlation decreased if the subject engaged in firearm risk-reduction activities, like safety and training courses.

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firearm usage with computer simulations to track subjects’ performance before and after

drinking, found “intoxicated subjects were less accurate, slower to fire in reaction time scenarios,

and quicker to fire in scenarios requiring judgment relative to [the control group].”50

Rep. Jackson’s failed attempt to amend HB 937 to require servers at establishments

allowing concealed carry to ask patrons whether or not they are armed illustrates another

objection to the “law-abiding citizen” presumption. Specifically, enforceability is a concern

because the new law basically asks us to trust that concealed carriers will obey it. But, as the

N.C. Restaurant & Lodging Association acknowledged in its policy guidance statement in

response to the frequently asked question—“how will I know if someone has a concealed

handgun or not?”—enforceability poses be a challenge:

That’s a tough question, because the handgun should be concealed. There is a likelihood that someone with a concealed handgun could order an alcohol beverage and you could serve it to them without knowing. The law does not require you to ask anyone purchasing alcohol whether they are armed. Our best advice is to not serve alcohol to anyone you know is carrying a concealed handgun.51

While NCLRA advises its members to contact police if patrons break the law, short of frisking

folks or employing metal detectors, there is no real way to know beforehand whether somebody

is carrying a concealed handgun, or violating the ban on drinking alcohol while doing so.

Chances are that bartenders, bouncers, and waitresses will not know whether the gentleman who

just ordered a double-Jack & Coke is armed until it’s too late.

B. No bloodbath yet + “More guns, less crime”

North Carolina is not the first state to enact restaurant & bar carry. Over the last five 50 See B.J. Carr et. al., A randomized controlled feasibility trial of alcohol consumption and the ability to appropriately use a firearm, INJURY PREVENTION (2009). It bears mentioning that the experiment was limited to only twelve participants, none of whom had any professional firearm training, and its primary goal was to determine the feasibility of further tests on a large scale. 51 See Concealed Carry of Firearms in ABC Permitted Restaurants, N.C. RESTAURANT & LODGING ASSOC., http://www.ncrla.org/associations/2228/files/Concealed%20Carry%20of%20Firearms%20in%20ABC%20Permitted%20Restaurants.pdf

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years, as gun-rights advocates have pushed for broader recognition of Second Amendment

liberties in the wake of the U.S. Supreme Court’s holdings in District of Columbia v. Heller52

and McDonald v. Chicago,53 similar laws have been enacted in Arizona, Kansas, Maine,

Mississippi, Ohio, Tennessee, Virginia, and Wisconsin, while at least a dozen other concealed

carry states do not address the issue, and thus appear to tolerate it by default.54 There have been

occasional episodes of ironic mishaps,55 but there is little available in terms of statistical analysis

on these laws’ effects. So far, the most serious attempt to measure them was an empirical study

by the Richmond Times-Dispatch comparing police arrest and incident report records in the years

immediately before and after Virginia passed restaurant & bar carry in 2010.56 The study found a

5.2% decrease in the number of violent crimes in the state’s bars and restaurants:

A total of 145 reported crimes with guns occurred in Virginia bars and restaurants in fiscal 2010-11, or eight fewer than the 153 incidents in fiscal 2009-10.57

Moreover, the study noted, only a small fraction of those crimes involved concealed carry permit

holders, which led gun rights supporters to declare their cause vindicated.58

52 554 U.S. 570 (2008). 53 130 S. Ct. 3020 (2010). 54 See Guns in Public Places: The Increasing Threat of Hidden Guns in America, LAW CENTER TO PREVENT GUN VIOLENCE (July 1, 2011), http://smartgunlaws.org/guns-in-public-places-the-increasing-threat-of-hidden-guns-in-america/. In each of these states, restaurant & bar-carry is restricted to individuals who have already obtained concealed carry permits, and each statute includes opt-out provisions for restaurant and bar owners, who can still prohibit firearms on their premises by posting signs. Permit holders are prohibited from drinking alcohol while carrying concealed everywhere but Kansas, where permit holders “may drink alcohol as long as they do not become so intoxicated that they are ‘incapable of safely operating’ their weapons.” Id. The line is drawn at the .08 standard for impaired driving. See Chad Lawhorn, Bar Owners Surprised by Change in Concealed Carry Law, LAWRENCE JOURNAL-WORLD (June 8, 2008), http://www2.ljworld.com/news/2008/jun/08/bar_owners_surprised_change_concealed_carry_law/ 55 See, e.g., Sponsor of Law Allowing Guns in Bars Arrested on DUI, Gun Charges, FOXNEWS.COM (Oct. 12, 2011), http://www.foxnews.com/us/2011/10/12/sponsor-law-allowing-guns-in-bars-arrested-on-dui-gun-charges/ (describing Tennessee Rep. Curry Todd’s arrest); Mark Bowes, Gun Crimes Drop in Virginia Bars and Restaurants, RICHMOND TIMES-DISPATCH (Aug. 14, 2011) (describing a concealed carry holder in Lynchburg, VA, who was arrested, fined, and lost his gun after he accidentally shot himself in the leg while reaching for his wallet in order to settle his beer tab). 56 See Bowes, supra note 55. 57 Id. 58 Id. As president of the Virginia Citizens Defense League Philip Van Cleave argued, “Keep in mind, what the other side was saying–that this was going to be a blood bath, that restaurants will be dangerous and people will stop

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Paul Valone, who played a key role in drafting HB 937 and rallying support for it as

president of Grass Roots North Carolina, makes a similar point, citing the general lack of a

bloodbath in other states to predict that “the doomsday predictions will all prove false.”59 Valone

tried to get lawmakers to include restaurant & bar carry when the General Assembly expanded

the Castle Doctrine in 2011. When his proposed bill was denied a hearing, Valone lambasted

GOP legislators by highlighting the story of a Charlotte restaurant employee killed during a

robbery. Valone blamed her tragic death on the state’s prohibition on firearms in places where

alcohol is consumed, and speculated things might have ended differently if the employee had not

been legally prohibited from exercising her right to bear arms in self-defense.60 For Valone, it is

a straightforward matter of common sense that “[c]riminals and violent sociopaths don’t like

encountering armed victims.”61

In addition to anecdotal evidence,62 Valone’s arguments are based on the theory of

deterrence articulated in John Lott’s controversial 1998 book More Guns, Less Crime, which

argued—based on declining homicide and crime rates in states that have liberalized their firearm

restrictions by adopting “shall-issue” permitting schemes—that concealed carry laws actually

going. But there was nothing to base the fear-mongering on.” Id. 59 See Phillips, supra note 24. GRNC is a North Carolina-based non-profit lobbying organization that has been instrumental in promoting pro-gun and especially concealed-carry legislation in the Tar Heel State since its inception in 1994. Billing itself as “North Carolina’s only no-compromise gun rights organization,” GRNC sponsors rallies and organizes letter-writing, telephone, and email campaigns to put pressure on state legislators to enact laws that reflect the organization’s expansive view of the Second Amendment. 60 See Paul Valone, NC legislators must act to stop restaurant homicide, GRNC.COM, http://www.grnc.org/pauls-blog/206-nc-legislators-must-act-to-stop-restaurant-homicide. (“[W]e may never know whether [her] murder could have been prevented, or whether her murderer might have been deterred by the prospect of encountering an armed victim.”). 61 See Phillips, supra note 24. 62 See Sorg, supra note 45. In his interview with IndyWeek, Valone repeated the same childhood anecdote about his father preventing a potential assault in a parking lot that he used to begin his remarks as a guest speaker for our class. He finished those remarks with details of a horrific home invasion-turned-homicide that he hinted could have been prevented had the homeowner exercised his right to bear arms. As discussed further in Part IV, anecdotal stories play a central role in pro-gun arguments.

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enhance public safety.63 For Valone and other deterrence proponents, the solution to violent

crime is not more gun control but less, because authorizing ordinary citizens to carry concealed

will make criminals think twice. As further support, they often cite a study by Gary Kleck

estimating that Americans use guns in self-defense as many as 2.5 million times per year.64 After

HB 937’s passage, Valone predicted violent crime will decrease, citing the Richmond Times-

Dispatch study as evidence.65

But UNC School of Government Professor Jeff Welty is skeptical of the RT-D study.66 A

5% reduction in crime in bars might sound impressive, but as Welty points out, the sample size

and results—a drop from the low-150s to the mid-140s over the course of a single year—are too

small to draw any meaningful conclusions. Indeed, Welty is skeptical of any attempts to measure

the effect of concealed carry on crime rates, in bars or elsewhere. Besides the difficulty in

measuring something that is, by definition, concealed, he explains, “there are just too many other

factors in play.”67 On the one hand, while crime rates have indisputably dropped over the last

two decades, there are plenty of potential explanations for that decrease, including variations

across state crime rates, the end of the crack epidemic, innovative policing tactics, and new state

and federal laws mandating longer sentences for repeat and armed offenders. On the other hand,

Lott’s theory has been criticized for both its methodology and its conclusions; scholars looking at

63 See generally JOHN LOTT, MORE GUNS, LESS CRIME (1998). 64 See Gary Kleck and Marc G. Gertz Armed resistance to crime: the prevalence and nature of self-defense with a gun, 86 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 150 (1995). 65 See Phillips, supra note 24. 66 Interview with Jeff Welty, Oct. 22, 2013. 67 Id.

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the same data have been unable to replicate Lott’s findings,68 and a panel for the National

Research Council recently deemed his work “unreliable.”69

David Hemenway casts further doubt on the relationship between concealed carry and

self-defense. One unintended side-effect of liberalized concealed carry is that, rather than

deterring criminals, the prospect of encountering an armed victim might actually make them

more dangerous, by providing an incentive to pack heat.70 Moreover, studies have shown that

carrying a gun often leads to feelings of overconfidence, and can make even law-abiding citizens

more prone to take unnecessary risks or overreact to perceived threats.71 There is also a

definitional problem when it comes to measuring “self-defense.” As Hemenway explains,

Kleck’s estimate of 2.5 million self-defensive gun uses per year relies on unreliable self-

reporting and is wildly out-of-step with National Crime Victimization Survey results, police

reports, and emergency room treatment statistics.72 Furthermore, a significant percentage of

reported self-defense claims may not actually meet the legal standard or qualify as “socially

desirable.” Hemenway notes that defensive gun users often admitted they were more motivated

by a desire to “punish wrongdoing” than a sense of self-preservation, but statistically, the

average person will be confronted with the chance to use a gun in a socially productive way only

68 See Ian Ayres and John J. Donohue III, Shooting Down the More Guns, Less Crime Hypothesis, 55 STAN L. REV. 1193 (2003). This study actually found a correlation between “shall-issue” states and increased rates of property crime and aggravated assault. 69 See Phillip Cook, Draft Chapter B (2013). Cook contends that Lott’s argument is simply “too good to be true,” partially because concealed carry permits holders make up a tiny fraction of the general population—in North Carolina, they represent roughly 2%, which parallels national trends. See also Welty Interview, supra note 66. Moreover, permits tend to be “concentrated in rural and suburban areas where crime rates are already relatively low, among people with characteristics associated with a relatively low rate of victimization—white, middle-aged, middle-class”—many of whom may have already been carrying concealed anyway before the laws changed. See Cook at 8. Thus, while concealed carry might play some role, it is “unlikely to induce more than negligible change in the incentives facing criminals to go armed themselves or to avoid potentially armed victims.” Id. 70 See DAVID HEMENWAY, PRIVATE GUNS, PUBLIC HEALTH, 69–75 (2004). 71 Id. Hemenway posits that when even highly trained police officers make mistakes in judgment and accuracy when forced to use their weapons, the increased proliferation of armed civilians poses troubling concerns. 72 Id.

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once in a lifetime.73 Which raises the question: how good are concealed carriers at knowing

when they actually need to use their guns?

IV. Analysis

A. “What sort of person would go to a bar to not drink just so they could carry a gun?”74

Scott Medlock’s analysis of how our nation’s gun debate and individual views towards

guns are often driven by irrational factors provides some helpful background for assessing the

motivations of a hypothetical restaurant & bar carrier.75 “Irrational” in this context does not

necessarily take on pejorative connotations, instead it refers to the heuristic frameworks and

cognitive shortcuts people naturally use to make sense of the world. Typically, these frames

operate subconsciously, rather than manifesting themselves as overt biases, to shape our values

and how we interpret new information.76 Medlock identifies several heuristic frameworks that

influence how we talk and think about guns.

One of the most important is dread. Medlock analyzes how the NRA’s rhetoric appeals to

fears of gun confiscation and government tyranny, but a more fundamental point here is that

most people are just plain scared of falling victim to violent crimes.77 Statistics may show that

crime rates are falling, but people are more influenced by, and responsive to, horrific news

reports of terrible homicides because they provide specific stories to which we can viscerally

73 Id. at 72–75. It is worth noting that Hemenway’s book was published in 2004, nearly a decade before the George Zimmerman trial. According to then-available NCVS data, the leading category of self-reported “self-defense” was committed against animals. Among humans, the majority of self-defense claims were reported by police, while a majority of civilian claims were made by a handful of folks who claimed multiple self-defensive gun uses. As Hemmenway points out, when criminals do get shot, it is usually by cops or other criminals, rather than civilians. 74 John Miller, Nov. 6, 2013. 75 See Scott Medlock, NRA = No Rational Argument: How the National Rifle Association Exploits Public Irrationality, 11 TEX. J. C.L.&C.R. 39 (2005–06). 76 Id. at 44–45. 77 Id. at 50.

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relate.78 Thus, we tend to overestimate our chances of being victimized.79 A related factor is

trust. Specifically, Medlock shows how the NRA’s rhetoric fosters popular resentment towards

“elites” in the media and government who think they know best about how to keep us safe, but

do not understand gun culture or traditional rural values and are miles away when trouble

arises.80 Similarly, if crime is so pervasive, we cannot always rely on police to protect us. From

this perspective, it makes the most sense to trust in oneself, and one’s gun.81

Both these factors play into the notion of control. We tend to more readily accept risks

when we feel in control of them. (The classic example here is feeling safer when driving a car

than flying in an airplane).82 As Medlock notes, for someone familiar with/fond of firearms, a

gun is no doubt a symbol and tool for exerting control over one’s destiny, and he describes how

NRA press releases about armed citizens intervening to stop crimes reinforces this dynamic.83

However, Medlock also cautions that feelings of control can quickly devolve into

overconfidence in one’s ability to manage a situation, and suggests that by similar logic, gun

owners may overestimate the advantage they gain from carrying their weapons, while

underestimating the risk of an accident, mistake, or botched defensive use harming themselves or

an innocent victim.84

78 Medlock bases his analysis off of Paul Slovic’s theoretical work on how people perceive risks and make decisions from a behavioral economics point of view. For a more recent examination of heuristic biases and how vivid personal examples are often more influential than statistics, see DANIEL KAHNEMAN, THINKING FAST AND SLOW (2011). In a related vein, Medlock argues that the “armed intervention” stories featured in NRA publications of ordinary citizens preventing crimes by exercising their right to bear arms appeal to this same “personal” dynamic. 79 See Medlock, supra note 75, at 47. 80 Id. at 56. 81 Id. at 54. 82 Id. at 47. 83 Id. at 48. 84 Id. at 49.

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In an essay describing his own experiment with carrying a concealed handgun, journalist

Dan Baum provides a specific illustration of how these factors operate.85 Baum identifies himself

as a liberal and a lifelong hunter, and provides a skeptical but sympathetic depiction of pro-gun

activists. As Baum notes, for many gun owners, concealed carrying is not just a safety measure

but also a political statement and an integral part of their personal identity.86 These folks tend to

take a Hobbesian view of the world, in which the threat of violent crime is always lurking in the

background, and the police never show up until it’s already too late. The only solution is to take

control over one’s personal safety, which makes the act of concealed carrying a laudable

assertion of individual responsibility.87

Baum’s description of the gun safety course he took to satisfy Colorado’s concealed carry

permit requirement is particularly revealing. There, concealed carriers are trained to view the

world and the threats it presents through a color-coded rainbow of risk awareness. Whereas

“condition white” is a state of total relaxation and obliviousness, concealed carriers are

encouraged to remain in “condition yellow” to stay vigilant of their surroundings.88 But this,

Baum’s experience reveals, can be stressful and exhausting—he describes himself as constantly

on-edge, and he eventually gives up carrying because he finds always taking the full measure of

every possible risk in any given situation too demanding to allow him to ever truly relax.

85 See Dan Baum, Happiness is a Worn Gun, HARPER’S (Aug 2008), http://harpers.org/archive/2010/08/happiness-is-a-worn-gun/?single=1 86 Id. (“Shooters see their guns as emblems of a whole spectrum of virtuous lifestyle choices—rural over urban, self-reliance over dependence on the collective, vigorous outdoorsiness over pallid intellectualism, patriotism over internationalism, action over inaction—and they hear attacks on guns as attacks on them, personally.”) 87 Id. (“Beyond mere politics, gun carriers are evangelizing a social philosophy. Belief in rising crime, when statistics show the opposite, amounts to faith in a natural order of predators and prey. The turtle doesn’t apologize for his shell nor the tiger for his claws; humans shouldn’t be bashful about equipping to defend themselves. Men and women who carry guns fill a noble niche between sheep and wolf. ‘Sheepdogs’ is the way they often describe themselves—alert, vigilant, not aggressive but prepared to do battle.”) 88 Id.

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Despite his personal preferences, Baum ultimately comes down in favor of concealed

carry, so long as permit holders really are trained properly. He argues that in the absence of

statistics demonstrating that concealed carrying makes things worse, the practice should be

treated the same as other expressive constitutional rights. But he still identifies several concerns

about safety training and reciprocity of licenses between states with different training

requirements.89 And he acknowledges that carrying concealed, and constantly worrying over

one’s surroundings, tends to foster irrational fears of crime, deep pessimism towards society in

general, and a need for control that borders on obsessive-compulsive.

Based on the picture Baum paints of carrying concealed, the type of person who would

forego the pleasure of alcohol to take advantage of North Carolina’s restaurant & bar carry law

might look like a rugged individual who is unusually concerned about crime, eager to take on the

burden of protecting himself, cautious of his surroundings, and (hopefully) well-trained in safety

precautions. But we also know that some gun owners are overzealous,90 or even drunk,91 which

makes restaurant & bar carry’s enforcement issues especially problematic. Moreover, even if we

can trust concealed carriers to refrain from drinking or taking their guns into establishments with

posted prohibitions, bars are often crowded with aggressive young men, fueled by alcohol,

89 Id. Baum complains that the “safety trainings” he attended focused less on “safety” or “training” than on indoctrinating attendees into a sort of fraternity that celebrates the exercise of Second Amendment rights. He notes similar displays of solidarity in his interactions with pro-gun activists, one of whom described the rationale behind a state-level open-carry campaign as being to further “normalize” the presence of guns in public. As for Baum’s claim that concealed carry has not made things statistically worse, he relies on FBI data released several years after the 2004 Hemenway study. But the statistical findings are largely similar, the authors simply emphasize different aspects: where Hemenway worries of what could go wrong, Baum emphasizes what hasn’t. While it is impossible to know what Baum would make of the Richmond Times-Dispatch study, he is clearly receptive to the “well, there hasn’t been a bloodbath yet” line of argument (although he is more ambivalent than Paul Valone and others who declare victory because the worst-case scenario has not yet come to pass). Generally, it seems like where you stand on the “lack of a bloodbath” line of reasoning depends on whether you place more importance on Second Amendment liberties or public health and safety statistics. 90 See Hemenway, supra notes 70–74 and accompanying text. 91 See Luo, supra note 46 and accompanying text.

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hormones, and concerns about honor.92 It is not hard to conjure up hypotheticals involving

misunderstandings instigated by non-concealed carriers escalating to unnecessary tragedies

based on non-socially useful self-defensive gun use. And further questions loom: Is there any

basis to believe that concealed carriers actually go to the same establishments where the risk of

violence is most serious? Will the “opt-out” provision undermine safety in individual bars, or

will its effects prove illusory given the criminological literature’s demonstration that violent

crime rates are often driven by broader, more cumulative neighborhood-level factors?93

B. Why restaurant & bar carry is bad policy

Even if Paul Valone is right, and there is no bloodbath, restaurant & bar carry is still bad

policy. The General Assembly’s decision to adopt a one-size-fits-all solution to what the

criminological literature suggests is a fundamentally local problem illustrates a full-on legislative

embrace of deterrence theory, and is arguably better understood as expressive or values-based

lawmaking. Since no studies were cited to demonstrate any serious examination of the problem

of drinking and violence in North Carolina, restaurant & bar carry makes the most sense when

viewed in context with the rest of HB 937, which was designed as an omnibus legislative

laundry-list to further liberalize the state’s gun restrictions. The new law’s implicit premise

appears to be that rather than enhancing public safety, gun-free zones ultimately protect and

embolden the bad guys, who can rest assured that their victims will basically amount to sitting

ducks—hence the need for concealed carrying at parks, playgrounds, and yes, even restaurants

and bars. In short: the enactment of restaurant & bar carry was not really about solving specific

problems related to alcohol or violence or even restaurants or bars—it is more a reflection of

broader assumptions about human nature and the necessity and efficacy of the individual right to

92 See Graham and Wells, supra note 29. 93 See ROMAN ET. AL., supra note 26.

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bear arms in self-defense. These assumptions (and the General Assembly’s increasing

willingness to base laws on them) reveal a fundamental ideological judgment—one that is deeply

skeptical of the potential for government-based solutions or collaborative efforts between law

enforcement and merchants, one that values only individual liberty, one that basically just out-

sourced a legitimate public safety concern to the judgment of individual law-abiding citizens.

Recent nationwide statistics indicate that between HB 937’s passage in July and its take-

effect date in October, more than a dozen shootings occurred inside bars and restaurants or

outside in their parking lots.94 It is unclear if any of the shooters had concealed carry permits, but

here in North Carolina, the battle over restaurant & bar carry continues, with activists on both

sides of the gun debate threatening boycotts of local merchants they disagree with.95 It remains

uncertain what economic impact these campaigns might have, but they do illustrate how the new

law puts restaurant and bar owners in a potentially awkward position by injecting a hot-button

political issue into zones typically reserved for leisure.96 The signs they post on their doors if

they do choose to “opt-out” will serve as reminders that instead of consulting criminological

statistics on how best to alleviate alcohol and bar-related violence, our state’s leaders have

94 See Sorg, supra note 45. 95 On the pro-gun control side, citing its commitment to “helping families eat without constantly wondering if other patrons are carrying concealed weapons,” North Carolinians Against Gun Violence has launched an “Ask Before You Eat” campaign. Ask Before You Eat, NORTH CAROLINIANS AGAINST GUN VIOLENCE, http://www.ncgv.org/ask_before_you_eat. Meanwhile, Valone’s GRNC has launched a “Safe Restaurants” campaign, listing concealed carry-friendly establishments and encouraging supporters to report merchants who refuse to remove their “no concealed carry” signs for inclusion on a statewide “Don’t Buy Restaurant” list. See GRNC Press Release: Gun Group Targets Restaurants, GRASS ROOTS NORTH CAROLINA, http://www.grnc.org/grnc-alerts-archive/518-grnc-alert-6-31-13-grnc-press-release-gun-group-targets-restaurants. Some commentators have worried that restaurant & bar carry will devolve into a polarizing spectacle akin to the recent Starbucks open-carry appreciation days, see Tough Decision, supra note 24, which led the coffee chain to a half-reversal of its previous policies, openly pleading with gun owners to not bring their weapons inside its stores without actually banning the practice. See Stephanie Strom, Starbucks Seeks to Keep Guns Out of its Coffee Shops, N.Y. TIMES (Sept. 18, 2013). However, since restaurant & bar carry is, by definition, concealed, such a publicly visible controversy seems less likely. 96 While there is no data available about “opt-out” rates or economic impact in other states with similar laws, it is worth noting here that by mid-October, more than two-dozen Triangle area restaurants and bars had already posted signs prohibiting concealed carry on their premises. For a list, see Sorg, supra note 45.

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enacted a policy that turns the rest of us into unwitting participants in an ongoing social-

scientific experiment in support of a theory that is rooted more in values than data.