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 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.