Saturday, February 23, 2013

Second Amendment Doesn't Protect Concealed Carry, Tenth Circuit Rules

A three-judge panel ruled yesterday in Peterson v. Martinez that the Second Amendment doesn't protect a person's right to carry a concealed weapon in public.  The court didn't even apply a particular level of scrutiny or other constitutional test, because it ruled as a threshold matter that the Second Amendment doesn't even apply--that concealed carry doesn't even come within the Second Amendment's sweep.

The plaintiff in the case challenged a Colorado law that allows concealed carry permits for Colorado citizens only (and not out-of-staters).  The plaintiff was a Washington resident, and he therefore didn't qualify.  He argued that the ban on concealed carry for out-of-staters violated the Second Amendment, the right to travel, and Article IV Privileges and Immunities.

In ruling against the plaintiff on his Second Amendment claim, the court quoted Robertson v. Baldwin (1897), which said that "the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons."  The court recognized this as dicta, but said that it followed Supreme Court dicta nearly as closely as it followed holdings, and, in any event, the Court in neither Heller nor McDonald clarified things.  (If anything, the court said, those cases only strengthened the Robertson language.)  Moreover, the court said that bans on concealed carry are "longstanding."  For these reasons, it ruled that the Second Amendment didn't even apply--that concealed carry doesn't fall within the Second Amendment's protection.

Judge Lucero concurred, writing that even if concealed carry fell within the Second Amendment, Colorado's ban on concealed carry for out-of-staters would satisfy the appropriate constitutional test--intermediate scrutiny--because of the state's interest in public safety, and because much of the information necessary to determine whether an individual is qualified for concealed carry is kept in locally maintained databases.  In other words, the state couldn't promote its interest in public safety by licensing out-of-staters, because it couldn't get the information necessary to determine whether they qualified based on other criteria.

The court also rejected the plaintiff's right-to-travel and Article IV claims.  As to the right to travel, the court said that Colorado's ban isn't anything like the kinds of infringements on the right that other courts, including the Supreme Court, have recognized.  As to Article IV, it said that concealed carry is not a privilege or immunity protected by Article IV, as evidenced by the longstanding bans on concealed carry (the same reason why it ruled that concealed carry isn't covered by the Second Amendment).

The ruling came the same day as the Seventh Circuit's en banc ruling overturning Illinois's law banning carrying ready-to-use guns in public.  The two bans are different, though, and the courts' approaches are, too.  Thus the Seventh Circuit looked to whether carrying a ready-to-use gun outside the home goes to self-defense; it said that it did, and that Illinois's ban thus violated the Second Amendment.  The Tenth Circuit looked to whether concealed carry even comes within the Second Amendment's reach.  It looked to history to conclude that it doesn't, and thus upheld Colorado's ban on concealed carry for out-of-staters.

SDS

http://lawprofessors.typepad.com/conlaw/2013/02/second-amendment-doesnt-protect-concealed-carry-tenth-circuit-rules.html

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Comments

"A well regulated malitia" I am not in a civil or criminal lawer. and i can not quote official definitions to the letter,but is it possible the founding fathers were implying that the malitias that were to be appointed would be regulated? as in a code of conduct or a certain set of protocols or rules of engagement protecting those within the boundaries of american rule?ie the police,fbi,cia

Posted by: michael | May 25, 2013 7:38:24 PM

"The right to bear arms shall not infringed".Weren't the majority of colonists seeking refuge and deemed criminals for one reason or another?there is no mention of who these amendments applied to other than"white landowning males".i question who funded the cotton industry seeing as america didnt have cotton gins at the time.how many colonists were killed and lands confiscated between the revolutionary and civil war?not to mention the slaugter of millions of native americans in the name of "progress".I believe the united staes of america is owned by everyone but the american people.mortar cannot be replaced by mire.amen

Posted by: michael | May 25, 2013 7:57:36 PM

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