U.S. Circuit Court Of Appeals Rules: No Second Amendment Right To Carry Concealed Firearms

Author: February 25, 2013 3:25 pm
Concealed carry in all its glory… @OpenCongress

Concealed carry in all its glory… @OpenCongress

In a ruling that is going to shake up the worlds of gun lovers and the NRA, the Tenth U.S. Circuit Court of Appeals has ruled that the Second Amendment states no right to carry a concealed firearm in public. The broad wording of the ruling sets a far-reaching precedent against carrying a firearm outside the home.

Business Insider reports that in Peterson v. Martinez, a Washington State resident challenged Colorado’s concealed carry law, which restricts Concealed Handgun Licenses (CHL) to residents of Colorado. The state’s law allows people to have firearms in their homes, places of business, and vehicles, but to carry a concealed firearm in public places, residents of the state must apply with their local sheriff for a permit; the law allows “each sheriff to implement and administer.” (Source)

Because of the law, Peterson, a non-resident, was denied a CHL and claims that he is left “completely disarmed.” He took his case to court in an attempt to have the law overturned. (Source)

Sadly for Peterson, his plan backfired, and he had a little help from friends…and took them down with him.

 

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The NRA filed a brief supporting Peterson. Their much-used strategy, that of eliminating gun-safety laws one at a time, fell flat because this particular case’s narrow focus was on the issuance of permits for non-residents. What has resulted is that a precedent has now been set that will affect future federal court rulings and will have far-reaching ramifications. Peterson’s little quest to carry a handgun “blew up into an expansive ruling limiting gun rights.” (Source)

Nice.


The court:

We first ask whether the Second Amendment provides the right to carry a concealed firearm. We conclude that it does not.

In light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment’s protections.  (Source)

The court continued by quoting the Supreme Court “like most rights, the right secured by the Second Amendment is not unlimited.” (Source)

(Yes! Thank you Justice Scalia. We knew this would help us at some point.)

The court rejected arguments that Colorado’s concealed carry law infringes on the Equal Protection Clause and the Privileges and Immunities Clause. Furthermore, the court safeguarded the ruling against appeals to the U.S. Supreme Court by recounting other court rulings and state laws – some going back as far as 1813 – and based its ruling on prior U.S. Supreme Court cases.

With respect to Peterson’s claims against the Denver sheriff, we conclude that the carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause. In Robertson v. Baldwin, 165 U.S. 275 (1897), the Supreme Court stated in dicta that “the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.” Id. at 281-82. More recently, in District of Columbia v. Heller, 554 U.S. 570 (2008), the Court noted that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues,” and explained that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions.” Id. at 626. In light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment’s protections.

We reach the same conclusion with respect to Peterson’s claim under the Privileges and Immunities Clause, U.S. Const. art IV, § 2, cl. 1, which is coterminous with his right to travel claim. As the Supreme Court explained in Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988), “it is only with respect to those ‘privileges’ and ‘immunities’ bearing on the vitality of the Nation as a single entity that a State must accord residents and nonresidents equal treatment.” Id. at 64-65 (quotations and citations omitted). Because the concealed carrying of firearms has been prohibited for much of our history, we conclude that this activity fails the Friedman test. (Source)

The court filing then proceeded to hit Peterson (and our buddies at the NRA) with case after case that supported their ruling, and ended it with:

We conclude that carrying a concealed weapon is not a privilege or immunity protected under Article IV [of the constitution].

Given that the concealed carrying of firearms has not been recognized as a right … we cannot declare this activity sufficiently basic to the livelihood of the Nation. (Source)

To qualify for concealed carry licenses, Colorado residents are screened by their local sheriffs for misdemeanors and municipal court convictions via locally maintained databases that involve and include:

  • drugs
  • alcohol or violence that will disqualify a citizen
  • mental health contacts
  • 911 calls that do not result in an arrest
  • a history of aggressive driving
  • juvenile arrest records
  • plea agreements that result in deferred sentences
  • restraining orders in civil cases
  • reports that a person is a danger to himself or others

This information isn’t stored in national databases, of course, which is why non-residents can not get a concealed carry license – local law enforcement officials can’t access records held by other states. And I doubt that will change, since “other states” and the organization that rules the right-wing – the NRA – will balk at that idea. And at any rate, far too many people who want guns would be disqualified from ownership – as they should be – based on that sweet little list that Colorado has.

The ruling concludes:

Colorado has shown that ensuring CHL holders are qualified is an important governmental objective [emphasis mine], and the residency requirement is substantially related to that objective. The two other courts that have considered right to travel challenges of CHL residency requirements have reached the same conclusion, on largely the same basis. (Source)

Now wouldn’t it be nice if we all had our law enforcement officials (or SOMEONE) screening for all of that stuff? I’m going to pass Colorado the Texas “Don’t Mess With….” slogan. Nicely done!


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I am an unapologetic member of the Christian Left, and have spent a lot of time working with “the least of these” and disadvantaged and oppressed populations. I’m passionate about their struggles. To stay on top of topics I discuss, follow  my blog, subscribe to my public updates on Facebook, follow me on Twitter, or connect with me via LinkedIn. Find me somewhere and let’s discuss stuff.

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