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How did I get to this question? Reading Politico's May 19, 2023 DeSantis’ weakness as Trump slayer has GOP rivals smelling blood I saw the quote:

And that might not be the end of it. New Hampshire Gov. Chris Sununu told Puck this week there’s a “61 percent chance” he runs for president.

which I assumed was humor, so I looked up his political positions in Wikipedia and found that

In 2017, Sununu signed Senate Bill 12, which enacted constitutional carry in New Hampshire.

And that link says:

The phrase "constitutional carry" reflects the view that the Second Amendment to the U.S. Constitution does not abide restrictions on gun rights, including the right to carry or bear arms.

Question: What is the political origin/etymology of the term "constitutional carry"? How did we end up with the phrase "constitutional X" where X is something that the US constitution does not "abide restrictions on"? Which politician or political committee coined this particular phrase?

Not asked: As a rhetorical question posed to try to get at the use of the "constitutional X" construct; by extension can one propose "constitutional marijuana" because the US constitution does not "abide restrictions on" its use? In my meagre understanding it's the Judicial branch that decides what is or isn't constitutional.

Of course lawmakers must always be diligently cognizant of constitutionality issues but I didn't think they get to decide what is or isn't, except when actually writing amendments -- which includes the 2nd -- so is this a case of "we wrote it, so we can interpret it"?

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    Hint: see the part you quoted, "The phrase "constitutional carry" reflects the view that the Second Amendment to the U.S. Constitution does not abide restrictions on gun rights, including the right to carry or bear arms."? Maybe there's a reason, when talking about "constitutional carry", that someone might specifically cite that part of the constitution? Can you think of an analogous part of the constitution that talks about marijuana in a comparably specific way? No? Well, that's your answer right there, isn't it?
    – Karl Knechtel
    Commented May 20, 2023 at 10:42
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    @KarlKnechtel While it's the Declaration of Independence that includes "pursuit of happiness" as one of the "certain unalienable rights" it sets forth, I'd always (perhaps naively) assumed that the US Constitution guaranteed those three. Thus I've just asked Does the US Constitution guarantee the "certain unalienable rights" asserted in the Declaration of Independence?
    – uhoh
    Commented May 20, 2023 at 11:06
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    On etymology, I instantly thought about the humorous term "taking my constitutional" for taking a walk – a suprisingly old one. But tracing that would be a question for English SE.
    – ccprog
    Commented May 20, 2023 at 14:41
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    "I'd always (perhaps naively) assumed that the US Constitution guaranteed those three": have you read the constitution? If not, why not? It doesn't take very long. But even if the constitution did guarantee the right of pursuing happiness, that certainly isn't talking about marijuana specifically, much less with comparable specificity to that with which it mentions the right to bear arms, to get back to @KarlKnechtel's question.
    – phoog
    Commented May 20, 2023 at 22:19
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    @phoog Seeing as how it takes an entire branch of the US government to interpret the constitution - "it does say X and it doesn't say Y" and after 234 years they're still not finished interpreting it I think "Have you read it?* - while sounding clever as a comment - is a bit of a non sequitur here. A law library has shelves and shelves of books about what it does and doesn't say. "Constitutional Law" classes and scholars aplenty.
    – uhoh
    Commented May 21, 2023 at 1:57

1 Answer 1

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The right to keep and bear arms is explicitly called out in the constitution. The full text of the 2nd Amendment is:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

As you can see, it explicitly calls out the positive right of people to keep "arms" as well as the negative right against "infringement". Nowhere in the 4,500ish or so words in the U.S. Constitution will you find marijuana, or cannabis, or anything referring to that particular plant, so "constitutional marijuana" would only make sense if an amendment is added that explicitly creates a positive right to it. Without actual reference in the constitution, the term "constitutional marijuana" sounds like someone arguing against the requirement of driver licenses since they have a "freedom of travel" or stating that the amount of gold fringe on a flag present in a courtroom has a bearing on that court's jurisdiction (it does not).

Looking at the Google Ngram for the term, it looks like it really started to take off starting around 2006/2007 timeframe. That may not be actual evidence for its etymology, but it's the best I've been able to find and matches my own anecdotal experience. It also wasn't long before the DC v Heller decision in 2008. Unfortunately I don't think there's going to be a beyond-the-shadow-of-a-doubt singular individual or organization we can point to as responsible for coining the phrase, since it's spread really was (and is) a grassroots level movement.

I think you definitely have a point on the separation of concerns in regards to the judicial branch being the sole arbiter on what is or is not constitutional, but no branch of government has authority over what political slogans gain traction in common parlance. The legislative body may get more input into that, but only by virtue of having to constantly run for re-election in the House.

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  • So maybe the phrase "does not abide restrictions" in the block quote isn't doing the job of explaining that it's supposed to do.
    – uhoh
    Commented May 20, 2023 at 5:24
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    @uhoh At it's core, it's still a simplification. Felons, currently incarcerated prisoners, currently inebriated persons, and maybe some other categories are absolutely still restricted. I don't think backers of constitutional carry statutes really had those people in mind, however.
    – user5155
    Commented May 20, 2023 at 5:26
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    From everything that I have seen the founders also created gun laws that the courts would consider unconstitutional these days.
    – Joe W
    Commented May 20, 2023 at 13:01
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    @JeffLambert executive branch officers also have a duty to disregard unconstitutional laws or orders. Many of these decisions never make it to a courtroom. If a legislature declines to pass a bill because they believe it to be unconstitutional, they have made a decision about its constitutionality. There's no court higher than the supreme court, but they're not the only people who can determine whether something is constitutional.
    – phoog
    Commented May 20, 2023 at 15:18
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    @uhoh Not only that, a completely separate legislature can come back the very next session and come to a completely different determination. If an executive officer decides on their own an order is unconstitutional and their boss disagrees, they'll both have to stand before a judge (or more, on your way up to 9..) before an actual decision on constitutionality is reached rather than someone's best guess or "gut feeling".
    – user5155
    Commented May 30, 2023 at 1:48

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