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Government

Federal Court Finds No Constitutional Right to Carry a Concealed Weapon — We Explain The Decision

Feb. 25, 2013 3:01pm Mytheos Holt

While gun rights supporters might like to think the Second Amendment to the United States Constitution is an absolute guarantee against government interference, according to at least one (relatively conservative) appeals court, they are severely mistaken. In fact, according to that same court, when it comes to carrying concealed weapons, the Second Amendment is basically irrelevant.

Last Friday, the Tenth Circuit Court of Appeals handed down its decision in the case of Peterson v. Martinez, a case involving the question of whether a state has an obligation to provide a concealed carry license to anyone who has been granted such a license in another state. Their answer was, to put it mildly, “no.”

In fact, the court adopted a fairly novel approach in explaining why the right to keep and bear arms didn’t apply in this case: Rather than rely solely on precedent that restricted gun rights, they built most of their analysis on language from cases that expanded gun rights, but still made clear that there were limits, of which concealed carry was certainly one. As Lawyers.com’s Larry Bodine put it, “To bullet-proof the ruling against an appeal to the U.S. Supreme Court, the 10th Circuit recounted numerous court rulings and state laws dating back to 1813, and based its ruling on prior U.S. Supreme Court cases.”

Still, given which judges ended up deciding the case, this approach may be less surprising than it first appears. While the decision was written by Judge Carlos Lucero, a Clinton appointee, all three judges voted unanimously against the right to concealed carry, which may surprise some, given that one (Judge Bobby Ray Baldock) was a Reagan appointee, and the other (Judge Harriz Hartz) was a nominee by the second President Bush, neither of whom were presidents known for nominating liberal judges.

So why did they decide the way they did? To understand that, one needs to first understand a little about the case, and about court precedent regarding the Second Amendment.

The Case

The person bringing the case was one Gray Peterson, a resident of Washington state, who possessed concealed carry permits both in Washington and in Florida. Peterson frequently visited the Denver, Colorado area, and in so doing, wished to carry a firearm with him at all times. However, the city of Denver currently bans open carry of firearms, which means Peterson would need to get a concealed carry license from the state in order to carry his weapon in most situations.

Fortunately, Colorado did have a program for recognizing the concealed carry licenses of other states. The problem for Peterson was that Colorado only recognized concealed carry licenses from states that also recognized concealed carry licenses from Colorado. In other words, if a state wouldn’t recognize Colorado’s concealed carry licenses, Colorado wouldn’t recognize theirs. Neither Florida nor Washington state recognized Colorado’s concealed carry licenses, so Peterson was out of luck.

Worse, he couldn’t apply for a license on his own merits, because Colorado would only grant new licenses to Colorado residents, not people from out of state. In other words, there was literally no way for Peterson to get a concealed carry license in Colorado unless he moved. So, claiming he needed to carry a firearm with him, Peterson sued to get the law banning out of state residents from getting Colorado-issued concealed carry licenses struck down, claiming it violated his Second Amendment rights.

The court disagreed. Why? Because when it comes to the Second Amendment, the right to keep and bear arms is far less absolute than many people might like to think.

The Limits of the Second Amendment

As we previously covered at TheBlaze, the right to keep and bear arms is more extensive than many liberals would like to think, and more limited than many conservatives would like to think. At the time, we wrote this about the legal realities regarding the Second Amendment (emphasis added):

For now, at least, the legal reality regarding the Second Amendment is that it does guarantee a right to keep and bear arms of some kind to individual citizens. Barring a massive shift in power on the court, this is unlikely to change, as five of the sitting justices voted to hold that the right exists and protects citizens against both state and federal law in the two cases cited above.

Moreover, even cases that the majority of justice disagree with are not always changed after the fact, given the varying attitudes of various jurists towards the importance of upholding precedent. For the foreseeable future, therefore, the right to keep and bear arms is a fixed reality of the American legal and constitutional landscape.

However, in practice, this tells us very little about how far that right extends, which is where the current (and future) legal debate is likely to focus. A right to own a handgun is one thing, after all, but what about the right to own rocket launchers? Miniguns? Anti-tank ordinance? An actual, physical tank? Are all of these things protected by the right to keep and bear arms? They are, after all, arms.

Fortunately for those worrying about their neighbors acquiring weapons grade helicopters, even the most stringent supporters of gun rights admit that the law allows for limits on what sort of weapons are protected, or on how those weapons might be obtained. For his part, Scalia would limit the amendment solely to weapons that can be carried by an individual human being, knocking such armaments as tanks and missiles out of contention, and admitted in the majority decision in Heller that regulations such as background checks and concealed carry permits almost certainly pass constitutional muster.

This, as it turns out, is precisely the reasoning that the Court ended up using in this case. From Judge Lucero’s decision [emphasis added]:

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.” 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.

Part of the issue at work here is that the Supreme Court’s decision to grant the right to keep and bear arms the same legal status as more longstanding rights like the right to free speech has been exceedingly recent (the two cases that established this precedent, District of Columbia v. Heller and McDonald v. Chicago, were handed down in 2008 and 2010, respectively), and thus there is much less clarity about where that “right” begins and ends. The 10th circuit court explicitly acknowledged this:

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held “that the Second Amendment conferred an individual right to keep and bear arms.” And in McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the Court concluded that “the Second Amendment right is fully applicable to the States.” Nevertheless, the Court has provided precious little guidance with respect to the standard by which restrictions on the possession of firearms should be assessed.

In Heller, the Court determined that the challenged statute, which completely barred possession of handguns in the home and required that any lawful firearm be kept in an inoperable condition, failed “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” The Court rejected application of rational-basis scrutiny, but declined to select another standard. However, the Court stressed that its opinion should not be read to “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” which the Court identified as “presumptively lawful regulatory measures.”

However, while the Supreme Court has proposed no method by which to gauge whether a restriction runs afoul of the Second Amendment, the 10th circuit court itself apparently does have a precedent, elucidated in the case United States v. Reese. The 10th Circuit specifically applied what the decision calls a “two-pronged approach” to Second Amendment claims. In other words, when assessing such claims, the court asks two questions:

1. Does the challenged law “impose a burden on conduct falling within the scope of the Second Amendment’s guarantee?” If not, the law is constitutional.

2. If so, does the law pass muster under a “means-end” test, IE does it pursue a constitutionally acceptable end using means that do not fall afoul of any explicit part of the constitution?

The court in this case completely avoided the second, more complicated question. Rather, they decided right out the gate that since carrying concealed weapons was not a right the Second Amendment was designed to protect, the law was presumptively constitutional:

We agree with the Fifth Circuit that in applying the two-step approach to Second Amendment claims, we consider at the first step “whether the law harmonizes with the historical traditions associated with the Second Amendment guarantee.” As the foregoing demonstrates, concealed carry bans have a lengthy history. Given…the Supreme Court’s admonition in Heller that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions,” we conclude that Peterson’s Second Amendment claim fails at step one of our two-step analysis: the Second Amendment does not confer a right to carry concealed weapons.

Nor was it only Heller and McDonald that the court relied on to make its decision. Rather, they used the treatises of the British legal scholar Blackstone (a contemporary of the Founding Fathers, and one of their inspirations), as well as quotations from several cases both in the early and late 19th century to prove that carrying concealed weapons was never a right that even the Founders meant to protect. In short, they wrote a decision with a liberal outcome using conservative reasoning on the limits of the Second Amendment. However, that is unlikely to be the end of the story.

So What Happens Now?

It is at this point that many gun rights supporters must be feeling nervous. After all, if a state can set up its concealed carry laws and open carry laws such that a citizen literally cannot carry their weapon in particular circumstances, surely that means the right to keep and bear arms is something of a formality.

Fortunately for these people, there are several factors that make that problem less pressing. Firstly, this case only applies to areas where the 10th Circuit Court has jurisdiction – specifically, Colorado, Kansas, most of Oklahoma, Utah and Wyoming, and may not even apply there, given that an appeal will almost certainly come out of the case, given that it directly contradicts another decision by the Seventh Circuit Court of Appeals.

Secondly, the court in this case did not rule that bans on open carry are constitutional (and, in fact, noted with some bewilderment that Peterson had not challenged the open carry statute in the decision), simply that there is no “right” to carry a concealed weapon implied by the Second Amendment. Again, other Circuit Courts differ with this assessment, and the Supreme Court will almost certainly be asked to step in.

For now, however, concealed carry licenses are a privilege, not a right.

In CONTROL, Glenn Beck presents a passionate, fact-based case for guns that reveals why gun control isn’t really about controlling guns at all; it’s about controlling us. Find out more HERE.

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Comments (460)

The_Fifth_Column
Posted on February 25, 2013 at 4:25pm
Courts Precedent in no way overrules the Second Amendment no matter what a Judge say’s, or a group of Judges say. The Bill of Rights is very clear. SHALL NOT BE INFRINGED. You can spin it, twist it, and look at it upside down, and it still says SHALL NOT BE INFRINGED. There is no interpretation needed by a Court. No other Amendment in the Bill of Rights has these words. This kind of garbage has gone on for far too long. There was at the time the Bill of Rights was written a very good reason for it’s ratification, and there still is. The Political Elite, and their Courts are showing you right now. I hope that time never comes; but, everyday brings us closer to the peoples use of it’s enforcement.

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Leerm
Posted on February 25, 2013 at 4:23pm
I have CCW Lic. I have had one for many years and not once I have thought it was a Constitutional Right. It is not and has never been. A CCW has nothign to do with the 2nd Amendment which is a right t keep and bare arms. A CCW is iussed by the State you live in not he Feds.

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- GhostOfJefferson
  Posted on February 25, 2013 at 4:25pm
  Actually “CCW” is the police term for an illegal act of concealed carry. I suspect what you actually have is some kind of concealed firearms permit or license.
  
  And all forms of peaceful carry are a right.
  
  Report this comment
BillofTruth
Posted on February 25, 2013 at 4:22pm
Does gun legislation really matter? Our “representatives” can make every gun there is illegal and demand that we turn them in without a word of opposition. There is nothing we can do about it. But talk is cheap. When they come a knockin on your door will you comply? Hell most of us tell the census creeps to get lost. Take our guns hahahahahahaha

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MLNJ
Posted on February 25, 2013 at 4:19pm
The ones who are “seriously mistaken” are the judges and politician who do not understand Federalist #28. They are driving this country in a Lincolnesque manner.

ML/NJ (non-gun-owner, but wishing all my neighbors are armed)

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scrapadapolis
Posted on February 25, 2013 at 4:18pm
Sorry judge the right to CC and to Own any weapon of choice is not a privilage,Driving is a privlage.Not in the ammendments.BUT the right to keep and bear arms and will not be infringed is.

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duhTruth
Posted on February 25, 2013 at 4:16pm
I agree, this headline is completely deceptive. I don’t like being tricked by a news organization that needs my trust!

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DamoclesAurelius
Posted on February 25, 2013 at 4:15pm
However, what about when the state of Colorado refuses to issue a carry-conceal, and the CITY OF DENVER refuses to allow open carry?

If Colorado wants to say it will not issue new carry conceals to non-residents, then it MUST allow open carry in the state, or the right to bear arms has been infringed. I think Peterson should appeal, and he should attack Colorado laws on this ground: the refusal to all American citizens the right to EITHER bear openly or bear concealed creates an infringement on the right to bear, PERIOD.

Either CO will be forced to change its carry-conceal law in the state, or it’s open carry law in Denver. Either way, I call that a win for gun-owners in CO.

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peachstealth
Posted on February 25, 2013 at 4:11pm
This probably should have been argued under article IV which states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

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BenFrank1791
Posted on February 25, 2013 at 4:06pm
It all depends on what your definition of the word “INFRINGED” is.
Clearly the court came up with numerous BAD court decisions to prop up their bad decision.
Hey look I can go back and quote a lot of court pro-slavery decisions, doesn’t make slavery any more right. The sad fact is the Second Amendment is de facto in the hands of the states. It no longer recognized as the law of the land. If you live in a pro-second amendment state consider yourself lucky. If not get some kevlar and learn to duck, because the bad guy don’t care.

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wilbstal
Posted on February 25, 2013 at 4:01pm
Lets wait until the smoke clears. do you think if some one is being attacked by tryanical Gov folks they will get a paper with Laws on it to see what they can do to protect themselves. Bull. all laws are null and void all men will do as they think best for their familys and themselves. The best things to do is make sure you kill the ones trying to violate your rights, or they will do it to someone else. Liberals never learn well. After all the fighting is done we will see where the laws stand if they go against our 2nd amendment rights the shooting will start all over again This can go on for hundreds of years as far as I am concerned. Until Liberal Communist get the hint, Dont Tread on me…

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PotatoJoe
Posted on February 25, 2013 at 3:59pm
I am very happy that I live in the great state of Utah! We do guns here. We love ‘em, we carry ‘em and we conceal ‘em. Right now the state legislature is going to pass a new bill that allows us to carry concealed without a permit of any kind. So while that mongrel Obama trys to take away our rights and our guns, Utah is giving us more rights and laws to keep our guns. Another bill that’s being voted on, is the Utah Firearms Protection Act which will make it a felony for anybody to come to our state and attempt to confiscate a gun. Booyah for Utah!!!

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- wilbstal
  Posted on February 25, 2013 at 4:05pm
  You have the Legal precdent for the rest of the USA to follow we can adopt yours and tell Liberal Communist to come and get us better to perish fighting than live under more of Obamas and the Communist Liberals rules
  
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Stu D. Baker-Hawk
Posted on February 25, 2013 at 3:58pm
This story is moot and serves no purpose, for when the time comes that we patriots feel compelled to carry our weapons, concealed or not, the overreaching laws that strove to stifle our lives will become irrelevant. In other words, we will be in a full-blown revolution, and those who sought to deny us are God-given rights will more than likely find themselves swinging by their stretched necks.

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NotBigBooteeitsBigButtay
Posted on February 25, 2013 at 3:58pm
I wonder what limitations they found on my right to life? Do I still have it if I move to Colorado.

I’m not sure anymore.

Perhaps the court will rule on this soon.

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Strasser
Posted on February 25, 2013 at 3:58pm
Why do these courts continue to try to make the Second Amendment so much more complicated than it really is? Screw case law! It was as simple as can be to the Founders who wrote it. The Second Amendment guaranteed that the FEDERAL government could not restrict firearms in any way. Period. No qualifiers. Any such limitations were to be left to the discretion of the individual STATES. If a state wishes to ban all guns, that’s their business, and they’d better be prepared to live with the consequences, including an exodus of citizens and businesses who disagree with their laws. That’s the way this nation was supposed to be–the federal government would stay out of our business and the people within each state were to be free to live the way they saw fit.

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Apo
Posted on February 25, 2013 at 3:58pm
Actually, the 2nd amendment grants us the right to bear arms.. There is no mention of HOW we are to bear them.. So, if they want to get technical, laws requiring concealed carry permits are unconstitutional.. We need to beat them, to death (repeatedly and without malice), at their own damn game..

Luckily in Florida we don’t have to worry about concealed carry permits as long as the magazine isn’t in the weapon.

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common cents
Posted on February 25, 2013 at 3:54pm
“A well regulated militia being necessary to the security of a free state”
Hard to have a militia without being able to take those arms outside the home and meet with others who are armed as well,, Ya think?
The Heller ruling left obvious the right to bear arms outside the home.
Having said that, it is not the supreme court’s job to “interpret” the Constitution. It is the supreme court’s job to “Uphold” the constitution. And even a child can read and understand the second amendment, I stand on the side of those who say I don’t need the court’s permission to carry, I already have the “God given, inalienable” permission to do so and will continue to!

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- NotBigBooteeitsBigButtay
  Posted on February 25, 2013 at 3:59pm
  So very well said.
  
  Report this comment
- ledbythnose
  Posted on February 25, 2013 at 4:15pm
  Common Cents
  I really don’t understand why we are having this discussion. Until the USA became a Corporation in 1871 and abandoned the Constitution. Folks openly carried weapons every where they went. The American Citizenry only has itself to blame for allowing the defacto Government to impose such anti Constitutional Laws upon us. The Second Amendment is clear and not open to interpretation. We can sit here till the Cows come home and not be able to find the answer because we are too divided in thought. If one does not take the Constitution for what it means at face value. We may as well turn our weapons in and sign up for the nearest FEMA Camp. Other wise we should spit on our Hands. Raise the Flag and begin the task of taking back the Republic by force. Talk is Cheap.
  
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- GhostOfJefferson
  Posted on February 25, 2013 at 4:24pm
  Until 1871? I open carry nearly daily (Ohio).
  
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batmanroxus
Posted on February 25, 2013 at 3:52pm
NO DOUBT ABOUT IT, we have a right to own rocket launchers! Mini-guns! Anti-tank ordinance! An actual, physical tank! Yes we do, and there is no doubt about that. In the day the 2nd amendment was written, private citizens had battle ships.

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- GhostOfJefferson
  Posted on February 25, 2013 at 4:11pm
  There was no such thing as a battle ship in the days the 2nd was written. At best you had Frigates and Man of Wars, and perhaps Galleons if you were down along the Florida coast. Battle ships didn’t show up until near the beginning of the 20th century, preceded by the dreadnaught class of ships.
  
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AmericaMustBeFree
Posted on February 25, 2013 at 3:49pm
I hope they all rot in hell! Men and their secret combinations!! They pretty much are all evil from city, to county to federal!

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BeckIgnoresConstitution
Posted on February 25, 2013 at 3:48pm
An informed and armed citizenry is essential to retain your God given rights and liberty! Freedom demands full enforcement of the entire Constitution, all the time! Allow politicians to ignore any part of it, at your own peril.

Not one so called “conservative radio or TV host” will inform America of pertinent details proving, that despite dubious HI birth, Obama is ineligible for not being a “natural born citizen” born in the nation to citizen parents (plural), pursuant to Article 2, Section 1, of the Constitution!Hardly any of them will even dare acknowledge Obama’s identity anomalies, despite Sheriff Arpaio’s current official investigation, which has already released irrefutable evidence proving Obama’s birth certificate is fraudulent!

These facts, pertaining both to compliance with the Constitution and national security, are unquestionably being covered up by their combined failure to distinguish themselves from the LIbEral shame-stream media, by just telling the truth!

Boycott businesses advertising with the servile lying media that won’t report the truth about Obama’s Article 2, Section 1, ineligibility: http://youtu.be/esiZZ-1R7e8 or his identity fraud: http://youtu.be/alVzyfptF80

Vote out every traitorous politician and judge in both state and federal government refusing to enforce Article 2, Section 1, of the Constitution! http://puzo1.blogspot.com/2013/01/barack-obama-de-facto-president-of.html

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temple62
Posted on February 25, 2013 at 3:47pm
Get a rope, we have too many judges and not enough common sense in America!

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freelancer91
Posted on February 25, 2013 at 3:47pm
With regards to the restriction of weapons such as miniguns and rocket launchers, I will agree that it isn’t a good idea to allow citizens to purchase such things.

HOWEVER

I would only abide by this agreement so long as the government remembers that the people have rights that are not to be infringed. The moment the government forgets where its power comes from and begins ruling authoritatively, all bets are off. When the government starts rolling tanks up my drive way because I’m refusing to bend to their will, you’re damn right I want a rocket launcher.

Of course, for now, this is purely hypothetical, but I do think it is important to point out that a citizenry should never be absolutely outgunned by their government.

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- BeckIgnoresConstitution
  Posted on February 25, 2013 at 3:57pm
  It was not hypothetical to the Founding Fathers, nor should it be for you.
  
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- BeckIgnoresConstitution
  Posted on February 25, 2013 at 4:17pm
  Note to Blaze censors, kindly either refute the fact that Obama is ineligible for failing to be a “natural born citizen” born in the nation of citizen parents (plural), pursuant to Article 2, Section 1, of the Constitution, or admit your bias, but please stop blocking my comments.
  
  Report this comment
- BeckIgnoresConstitution
  Posted on February 25, 2013 at 5:59pm
  Blaze, thank you for allowing my longer comment replete with supporting references, to appear for this article. Perhaps other comments posted elsewhere earlier today, will eventually appear. Your accommodation of dissenting opinions with those of Glenn Beck is cordially appreciated.
  
  Surely you must realize, it occurs to many members of Glenn’s audience of millions, ready, willing and able to act on the truth once known, that if Glenn would entertain similar detailed discussion on Article 2, Section 1, as he has with the 2nd Amendment, the end result would likely be the resignation or rapid removal of the usurper Obama from office.
  
  Glenn Beck should embrace the Constitution as the best cure for treating the cause, rather than just addressing symptoms, of the subversive sickness plaguing America under the treasonous Obama regime.
  
  Report this comment
kenndeaux
Posted on February 25, 2013 at 3:46pm
If the 2nd Amendment does not guarantee concealed carry,we should all carry out in the open like in the old west.

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- GhostOfJefferson
  Posted on February 25, 2013 at 3:52pm
  Well, see, the 2nd Amendment doesn’t place any restrictions on “bear arms” so in fact we do all have the RIGHT to carry as we wish, without government permission.
  
  I do agree though, open carry. I do it all the time, it’s a wonderful thing.
  
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UBETHECHANGE
Posted on February 25, 2013 at 3:46pm
The government has no right to prevents law abiding citizens from owning tanks, rocket launchers, or fully automatic weapons if we want. Whatever the government has, we have the right to have also.

“When governments fear the people, there is liberty. When the people fear the government, there is tyranny.” ~Thomas Jefferson

“The constitution shall never be construed…to prevent the people of the United States who are peaceable citizens from keeping their own arms.”
― Alexander Hamilton

Having to register and pay to obtain a conceal carry license is unconstitutional. By the way, the word “regulated” in the Webster’s dictionary of the founders day, meant functioning and well trained. A well-functioning and trained militia. The first law of nature is self preservation and it shall not in any way, shape, or form be infringed upon by our government. Period.

in·fringed | in·fring·ing

transitive verb
1
: to encroach upon in a way that violates law or the rights of another
2
obsolete : defeat, frustrate

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wilbstal
Posted on February 25, 2013 at 3:45pm
we will see when they try to take some guns ill bet the courts will cringe, when the shooting starts. paper shufflers in courts are not out in the real world where criminals and cops alike acost free citizens daily. I will never surrender any means of protection I use or plan to use. Laws made by man can be broken by man, keep this in mind as you Leftys go forward.

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notsocommonlogic
Posted on February 25, 2013 at 3:44pm
Florida has reciprocity with Colorado, so something is wrong with this article or his claim. If he has a license in Florida, it is good in Colorado.

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