Restricting Open Carry of Guns Constitutional if Concealed Carry Allowed

From Friday's decision by Judge William Smith (D.R.I.) in O'Neil v. Neronha:

[W]hile Bruen held that the Second Amendment's plain text protects "carrying handguns publicly for self-defense," it did not go so far as to declare that the text requires open carry. See Baird v. Bonta, 709 F. Supp. 3d 1091, 1125 (E.D. Cal. 2023).

But the Court need not dive too deeply into this question because, even assuming the text covers open carry, Defendants' application of the Firearms Act to regulate Plaintiffs' manner of public carry is within the Nation's historical tradition of regulation…. [In Bruen], the Supreme Court concluded that "[t]he historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation." And it drew that conclusion, in part, from its finding that historically, "States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly." The Firearms Act, through its permitting structure, does just this, albeit in reverse: it regulates Plaintiffs' manner of public carry in that it limits their right to open carry but leaves unaffected their right to concealed carry.

Plaintiffs make much of the fact that the Act's permitting structure reverses common historical regulations allowing open carry and limiting concealed carry. But the Second Amendment is not "a law trapped in amber." U.S. v. Rahimi (2024). Per the Supreme Court's direction in Rahimi, "[a] court must ascertain whether the new law is 'relevantly similar' to laws that our tradition is understood to permit, 'apply[ing] faithfully the balance struck by the founding generation to modern circumstances.'" In doing so, the Court concludes that Defendants' application of the Act's permitting structure to Plaintiffs is relevantly similar to historical regulations, and thus consistent with the Second Amendment.

{The Court's decision rests on the binding precedent set by the Supreme Court in Bruen and Rahimi. Thus, the Court need not undertake its own review of historical laws regulating the public carry of firearms.}

For more on this sort of analysis, which focuses on the magnitude of the burden on the constitutional right, see my Implementing the Right to Keep and Bear Arms After Bruen (NYU L. Rev. 2023), pp. 1956-61 (though that article doesn't discuss the question whether a restriction on open carry is indeed a sufficiently mild burden):

Bruen Leaves Room for Upholding Restrictions that Only Modestly Burden the Right to Bear Arms

Bruen did not foreground the burden threshold for right-to-bear-arms violations the way it stressed the scope inquiry. But the Court did suggest that some arms restrictions would indeed be constitutional on the grounds that they impose only modest burdens. This is particularly clear in footnote nine of the majority's opinion, which upheld licensing requirements for carrying guns:

Because [forty-three states' "shall-issue"] licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent "law-abiding, responsible citizens" from exercising their Second Amendment right to public carry. Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, "law-abiding, responsible citizens." And they likewise appear to contain only "narrow, objective, and definite standards" guiding licensing officials …. That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.

Of course, licensing requirements do interfere in some measure with the right to carry guns: They impose at least some "wait times" and some "fees." Nor did the Court suggest that longstanding tradition or history supported such licensing requirements.

Rather, the Court apparently reasoned that a modest burden, which does not "prevent" the exercise of the right, would be constitutional, at least so long as it serves the traditionally recognized government interest in "ensur [ing] … that those bearing arms … are … 'law-abiding, responsible citizens."' Modest, "[non-]exorbitant fees" would be constitutional, as would "[non-]lengthy wait times."

And this inquiry into the magnitude of the burden is reflected in the Court's more general discussion. The Court stressed that restrictions on public carrying significantly burden the right to keep and bear arms for self-defense: "After all, the Second Amendment guarantees an 'individual right to possess and carry weapons in case of confrontation,' and confrontation can surely take place outside the home." Self-defense has to take place where the "self" happens to be; because of this, restrictions on carrying outside the home concretely burden the right, and that concrete burden (coupled with the right's historical scope) helps explain why the right to bear arms extends outside the home.

Yet the Court distinguished some historically recognized gun controls on the grounds that "[n]one of these restrictions imposed a substantial burden on public carry analogous to the burden created by New York's restrictive licensing regime." "[T]he burden these surety statutes may have had on the right to public carry was likely too insignificant to shed light on New York's proper-cause standard." Indeed, the burden inquiry might be part of the historical scope of Second Amendment protection: American right-to-bear-arms law has reasoned that not all regulations amount to unconstitutional prohibitions for over 150 years, with only a few departures.

{See, e.g., Owen v. State, 31 Ala. 387, 388 (1858) ("That section was not designed to destroy the right, guarantied by the constitution to every citizen, 'to bear arms in defense of himself and the State'; nor to require them to be so borne, as to render them useless for the purpose of defense. It is a mere regulation of the manner in which certain weapons are to be borne …."); Aymette v. State, 21 Tenn. 154, 159 (1840) ("[A]lthough this right must be inviolably preserved, yet it does not follow that the Legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed.").

For one such departure, see Bliss v. Commonwealth, 2 Litt. 90, 91-92 (Ky. 1822), which struck down a ban on concealed carry even though open carry was allowed, reasoning that "whatever restrains the full and complete exercise of [the right to bear arms], though not an entire destruction of it, is forbidden by the explicit language of the constitution."}

In considering the magnitude of the burden, Bruen builds on the analysis in Heller, where the Court struck down the handgun ban in part because of how burdensome it was: "Nothing about [Framingera] fire-safety laws"—the laws that the dissent points to as evidence that the right to bear arms should be read as allowing handgun bans—"undermines our analysis; they do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents." Likewise, in distinguishing the handgun ban from colonial laws that imposed minor fines for unauthorized discharge of weapons, the Heller Court pointed out that the colonial laws "provide no support for the severe restriction in the present case."

Earlier in the Heller opinion, the Court similarly justified striking down the handgun ban on the grounds that the ban was a "severe restriction." In the process, the Court favorably quoted an old case distinguishing permissible "regulati[on]" from impermissible "destruction of the right" and from impermissible laws that make guns "wholly useless for the purpose of defence." And the Court's explanation of why the handgun ban is unconstitutional even if long guns are allowed is likewise consistent with an inquiry into how substantially a law burdens the right to bear arms:

It is no answer to say … that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

The Court is pointing out that handguns are popular for a reason: They are often the optimal self-defense tool, so bans on handguns make self-defense materially more difficult. The handgun ban, then, materially burdens the right to bear arms in self-defense. Such burden thresholds are common for other constitutional rights, such as the right to marry, the right to expressive association, the right to abortion (back when that right was recognized), the right to religious exemptions, the right to strong protection against even content-neutral speech restrictions, and more.

In Bruen, the Court also said that the Second Amendment inquiry must focus on (1) "whether modern and historical regulations impose a comparable [and comparably justified] burden on the right of armed self-defense," and on (2) "how and why the regulations burden a law-abiding citizen's right to armed self-defense." This too suggests that the magnitude of the burden matters.

But not just the magnitude of the burden matters, it appears—the reason for the burden also matters, which may end up reincorporating some sort of heightened scrutiny means-ends analysis into Second Amendment law, once the burden is found to be modest enough. Footnote nine, after all, stressed that the shall-issue laws burden the right for good reason: to support enforcement of constitutionally valid restrictions on gun ownership.

The Court had earlier concluded, based on its understanding of the Second Amendment's historical scope, that the right was limited to "law-abiding, responsible citizens." The "background check[s]" required by "these shall-issue regimes" support that limitation by making sure that the owners are indeed law-abiding and responsible in that sense. And the "firearms safety course[s]" promote the limitation by training licensees to be "responsible" in the sense of being able to use concealed weapons safely, should the need arise; indeed, such courses also often teach people how to be "law-abiding," for instance, by discussing the often complicated rules related to when lethal self-defense is permitted. These restrictions thus impose burdens that are both modest and justified by the scope of the right secured by the Second Amendment.

By way of comparison, fees that are higher than needed to administer the permitting system may be unconstitutional either (1) because they are "exorbitant" as an absolute matter or (2) because they are not "designed to ensure only that those bearing arms in the jurisdiction are, in fact, 'law-abiding, responsible citizens,"' but might instead be designed simply to raise money or deter gun ownership. Likewise, they would not be "comparably justified" to fees that are tailored just to the administration of the system.

Of course, people will disagree about which burdens should normatively count as substantial—just as they have disagreed about which burdens on abortion rights count as substantial, or about how ample the alternative channels left open by content-neutral time, place, or manner speech restrictions must be. Indeed, some courts have tried to minimize the burden imposed by very substantial restrictions: For instance, the Fifth Circuit upheld a ban on 18-to-20-year-olds acquiring guns from licensed dealers in part on the grounds that this was "an age qualification with temporary effect. Any 18-to-20-year-old subject to the ban will soon grow up and out of its reach." Yet whatever one might say of a waiting period of a few days, a waiting period of nearly three years, even if literally "temporary," is surely a serious burden.

It may also be hard to empirically determine just how burdensome a particular restriction might be. And of course restrictions that impose small burdens, when viewed individually, could end up amounting to a large burden. The Court's skepticism of even modest content-based speech restrictions may stem from this concern. But the Court nonetheless does consider the substantiality of a burden in many cases, by focusing, for instance, on whether a content-neutral restriction "leaves open ample alternative channels" for communication; the same might be feasible for gun controls, where courts can ask whether the restriction leaves open ample alternative means for effective armed self-defense. And more broadly, Bruen and its toleration of some regulations, such as shall-issue licensing requirements, suggest that some inquiry into the magnitude of a given burden is indeed part of the Second Amendment test.

Here are some more details on the Rhode Island regulatory scheme:

To obtain a handgun permit, the [Rhode Island Firearms] Act establishes "[t]wo separate and distinct licensing procedures." The first, set out in § 11-47-11, "is mandatory—an applicant who meets the criteria set forth in § 11-47-11 is entitled to a gun permit." Local officials issue these permits and are limited to issuing only concealed carry permits ("restricted permits").

The second procedure, detailed in § 11-47-18, "provides for the discretionary grant of a firearms license by the [AG] 'upon a proper showing of need.'" These discretionary permits authorize both open and concealed carry ("unrestricted permits"). Under Rhode Island law, permits of this nature are a privilege and there is no constitutionally protected liberty interest in obtaining one.

Neither § 11-47-18 nor any other section of the Act defines the term "proper showing of need," but the AG has issued policy guidance with a non-exclusive list of factors that he considers. But the AG retains "discretion to refuse a license even if a person makes 'a proper showing of need.'" Although this discretion is broad, it is not unlimited; the AG "must adhere to minimum procedural requirements when rejecting an application." "A rejected applicant is entitled to know the evidence upon which the [AG] based [his] decision and the rationale for the denial." The AG's decision is also subject to judicial review for legal error.

Plaintiffs in this case are seven residents and citizens of Rhode Island. Each possesses a restricted permit. And each previously possessed an additional unrestricted permit. But in 2021, the AG denied all their renewal applications for these unrestricted permits, finding that they did not need them because they already had restricted permits. Plaintiffs appealed their application denials and, following a hearing, the AG again denied their renewal applications….