Skip to comments.FEDERAL COURT FINDS NO CONSTITUTIONAL RIGHT TO CARRY A CONCEALED WEAPON
Posted on 02/25/2013 1:09:25 PM PST by ExxonPatrolUs
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 didnt 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.coms 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.
(Excerpt) Read more at theblaze.com ...
The court can find no right not to carry a gun either. The government is barred form denying gun rights.
See also Breaking News.
What Good Can a Handgun Do Against An Army?
The court is right to CONCEALED carry. There is a constitutional right to BEAR ARMS. That means open carry. Concealed carry is an infringement of the right that we have accepted in the past out of a sense of social responsibility (i.e. we didn’t want to scare the wussy hoplophobes too much). I’d rather carry openly because that lets me carry a much bigger gun!
Given the basis for the 2nd amendment (protection from tyranny), it's hard to figure how someone from Florida is protecting himself from tyranny by carrying a gun in Colorado. In fact, the reasonableness of the 2nd amendment would be undermined were resistors against government oppression were not, in fact, subjects of that oppression.
Nor does the case reach as far as the article implies it does. The article cites Heller as upholding "longstanding prohibitions," but in the cited content from Heller, the article reveals how this is a fantastically qualified sentence:
"...shall not 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,In other words, the Supreme Court has upheld only certain reasonable regulations on the right to bear arms, one of which being the states' ability to require concealed-carry permits. The clear implication from the court is that the decision may have been significantly different if the plaintiff was one of the sheriff's own constituents.
Will be interesting to see what SCOTUS thinks. Think we’ll be OK there.
To be clear:
The problem is that the plaintiff does not provide a reasonable remedy.
If Colorado offers a concealed-cary permit to someone who is not a resident of Colorado, than anyone from a state which has reciprocal recognition of licenses can seek a license in Colorado to get around their own state’s licensing. Presumably, their own state has more information on which to decide if the permit should be issued.
If the court forces a state to have reciprocal licensing of all other states, then if any state DOES issue out-of-state licenses, the least regulated state essentially licenses all other states.
The only real option that court had to allow the plaintiff to get a concealed-carry permit would be to decide in favor of a universal right to concealed carry, which is not consistent with the common law on which the 2nd amendment was based.
Oops: Cut and paste screw up. (I changed an argument, without changing the conclusion.)
The problem with a universal right to a concealed carry is not that it’s inconsistent with the common law on which the 2nd amendment is based, but that Heller explicitly gave the states the right to keep guns out of the hands of crazies, etc., which would be inconsistent with a universal right to concealed carry.
Plaintiff shot himself in the foot by not maintaining an objection to Denver ordinance that (in combination with denying non-residents CCW) prohibits all non-residents from all carry.
Not really. Illinois’ ban was a universal ban on all concealed-carry permits. Colorado’s was only on giving concealed-carry permits to non-residents.
Why doesn’t the 2nd Amendment cover the choice to carry a weapon concealed? Looks like infringment to me.
To always carry openly is not easy, for instance in the winter.
Recent example being Heller II, where the DC Circuit found that a ban on 10+ round magazines is constitutional. SCOTUS declined to take up the case.
Little older example being Heller. Scalia made a mishmash of the rule stated by the 1937 Miller case, which would have found ownership of an M-16 to be protected by the 2nd amendment, to find the opposite, on the legal basis that to find otherwise would be absurd. Yes, that was the legal rationale. It would be absurd to read the Miller case for what it says.
Shall not be infringed is strong language.
It would be impossible to construct any statute WRT guns that would not infringe on the obvious right granted by our creator in Luke 22:35
Lots of money, wasted. Didn't think ahead.
It's not at all unusual for a lawyer to miss the boat on framing the issue.
Waste of time maybe, but I don't see a setback in the case being lost, per se.
I see Heller as a setback, compared with Miller. Scalia gave these courts the tools to use against the RKBA, and SCOTUS will st by idly while the lower courts do their anti-RKBA thing.
I can see the constitutional RKBA being defined into some narrow pigeonhole that is worth very little, and takes much effort to obtain. AFAIK, SCOTUS has no objection to the $700 hoops that DC residents have to comply with to legally possess a handgun (approved models only) in their own home.
I think it is more correct to say that the court tossed out the Illinois ban on CARRYING OUTSIDE THE HOME. Nothing I read suggested that Illinois could not satisfy the court by enacting legislation permitting open carry.
Bryanw92 said: "There is a constitutional right to BEAR ARMS. That means open carry."
I don't agree. If the Founders had intended to enable the federal government to restrict or regulate concealed carry, they could certainly have said so. At the time of the ratification of the Second Amendment, there was no intention to permit federal regulation of arms whatsoever.
The Fourteenth Amendment recognized that states were violating the rights of freed slaves and this Amendment was used to incorporate the Second Amendment; meaning that its restrictions apply against the states.
Deciding that incorporation of the Second Amendment permits states to prohibit concealed carry, ought to immediately suggest that the Second Amendment would permit the federal government to prohibit concealed-carry or to implement the training and registration mechanisms similar to many states. That's a scary thought.
The recent experiences of Vermont, Alaska, and Arizona in allowing open or concealed carry without a permit provides all the proof that any court should need that no compelling reason or even a rational basis exists for requiring permits to exercise the right to keep and bear arms.
You said this:
It would be absurd to read the Miller case for what it says.
That scares the hell out of all FedGov people in power. And for the most part, SCOTUS does not check FedGov overreach because they ARE the FedGov too. So liberty seems to be in checkmate at this point in many respects.
Thanks again for your insight.
These people keep on, we're going to have a civil war. Mark it down.
These people keep on, we're going to have a civil war. Mark it down.
At best, they enable the overreach. See the Lopez case, gun free school zones act. It struck the law, and described the congressional findings that, if in place, would allow the law. Voila, the gun free school zones act is currently in place, and has been found constitutional by federal courts.
I'll be surprised in SCOTUS takes another gun case in my lifetime. The District and Circuits will just keep chopping the RKBA down; as they did with the Presser case, more or less feeding the collective rights theory, even though the Presser case stands for the OPPOSITE of what the lower courts claimed.
When it comes to the RKBA, I consider the courts to be literally corrupt. They have earned my contempt. I give them resepct for the same reason I give the Mafia respect.
Aside from the fact that any permit requirement in itself is an unconstitutional infringement, anyone who does not qualify for that permit should be incarcerated or closely monitored.
>>I don’t agree. If the Founders had intended to enable the federal government to restrict or regulate concealed carry, they could certainly have said so. At the time of the ratification of the Second Amendment, there was no intention to permit federal regulation of arms whatsoever.
Then, you do agree. I was saying that the 2nd Amendment covers the right to BEAR ARMS. I chose my next words poorly by saying that that means open carry. I meant that it means open or concealed carry, and it is the citizen’s choice.
If that’s true, there’s no constitutional right to gay marriage for the SAME REASON.
The court just decided that states don’t have to recognize others marriage licenses.
Fine, open carry it is.
There is more to this case than meets the eye.
For example, had the court found in his favor, it would have severely inhibited “state reciprocity” of gun and other laws. Colorado does not have reciprocity with either Washington or Florida.
State reciprocity creates a close parallel between gun law and homosexual marriage. If Colorado had been required to issue him a cc permit, though their law forbade it; in future, say Texas, might have to accept a homosexual marriage made in another state.
Most of the modern foundations for restrictive concealed carry laws happened during the 1920s and 1930s, during a spasm of anti-immigrant feeling. Many were shepherded through state legislatures by the then head of the NRA, Karl Frederick.
“Frederick’s model law recommended that states should only allow concealed carry by people with a license, and those licenses should be restricted to “suitable” people with “proper reason for carrying” a gun in public. Thanks to the NRA’s endorsement, these laws were adopted in the majority of states.”
Where is the Constitutional authority to prohibit carrying a concealed weapon?
Well, if you put it that way, sure.
To the extent that our Founders were aware of state laws which can be interpreted as defining the nature of "the right", we might have some problems.
It may turn out very fortunate that the anti-gunners have formed such an antipathy to open carry. It will be much easier to get the courts to mandate unintrusive concealed-carry laws. I really like the term, "Constitutional carry".
It would be nice if the courts recognized that the early reluctance to tolerate concealed-carry was obviously just a social prejudice and that today's reluctance to tolerate open-carry is the same thing. The Constitution should not be interpreted in the light of social prejudices.
I plan to visit Arizona again later this year. Unfortunately, it's likely I won't be able to stay permanently.
I don’t disagree; I’m only saying that Heller permits some regulation; some limits on the right does not mean there is no right at all.
Roberts already told the commies that they could restrict the second amendment. The court will rubber stamp any restrictions on the second amendment the Left can push into law, short of a total gun ownership ban. We have to stop them and can not count on the courts.
That is scary as hell, because it is spot on.
Carrying concealed not only prevents alarming the uninformed, hand-wringing, bed-wetting sheep amongst us, as well as overzealous and/or uninformed (as to the law) law enforcement officers, it also gives the carrier a tactical advantage.
The same way that a LONE armed, UNIFORMED security guard may be the first to be neutralized and removed as a threat to a bank robber, a citizen utilizing open carry may be taken out and his/her firearm stripped from them. Better to have the advantage of surprise.
I believe it was Scalia, of all people.
Not smart to give the left-wing, anti-Freedom gun-grabbing jackals an opening.
That is correct, it dosen’t. The Constitution plainly reads” To keep and bear arms.” That means that, one can possess[ keep] and carry [bear] arms. The term “arms” pertains to any thing one might need to defend one’s self.
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