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….

Comments

[wvattorney13]

Although I don't think the result is completely out of bounds, the court doesn't justify its conclusion. This bit:

"[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)."

Is completely silly. One might as well argue that Obergefell didn't say that gays could marry within city limits or during day time therefore laws restricting them to certain times and areas are constitutional.

Also, why are we looking at antebellum laws? Shouldn't we be looking at founding era laws which would make a difference? Isn't it time that the Court decides that instead of punting on it twice?

Again, we will see more and more of "law trapped in amber" from Rahimi to justify more and more gun control laws.

[Charles Nichols - CRTC]

wvattorney13, Bruen explained why we look to antebellum laws. SCOTUS even gave it a name, "liquidation."

If one were to look at founding era laws, and we should, then one would discover that the use of a concealed weapon to kill someone was punished by death, without the possibility of a pardon or a lesser punishment (called "the benefit of clergy"). The same was not true if the weapon was openly carried, or if the concealed weapon had been displayed to one's opponent and he was given the opportunity to either cease his attack, or to similarly arm himself.

The unsettled question left open by Heller and Bruen was whether or not handguns that are easily and ordinarily carried concealed are arms protected by the Second Amendment. SCOTUS said in Bruen that they are.

What SCOTUS did not do in Bruen was to overrule the right to Open Carry clearly stated in Heller. Nor did the judge provide a pinpoint citation to where in Bruen the Open Carry right from Heller was overruled.

If Bruen had overruled the Open Carry right from Heller, then why did Justice Alito respond to the dissent in Bruen by saying:

"If we put together the dissent in this case and Justice BREYER's Heller dissent, States and local governments would essentially be free to ban the possession of all handguns, and it is unclear whether its approach would impose any significant restrictions on laws regulating long guns. The dissent would extend a very large measure of deference to legislation implicating Second Amendment rights, but it does not claim that such deference is appropriate when any other constitutional right is at issue."

[Supremacy Claus]

Judge gibberish to disarm victims. The lawyer wants only the client, the criminal to be armed. Dispatching a criminal will get you arrested.

If you kill a repeat violent offender, you should get a cash reward of $10000. It is a small tip. You have saved your nation $200 million in future damage.

[Charles Nichols - CRTC]

District of Columbia v. Heller said that Open Carry is the right protected by the Constitution and said that prohibitions on concealed carry do not violate the Second Amendment.

The judge conceded the Plaintiffs' citation to NYSRPA v. Bruen, which said, "States could lawfully eliminate one kind of public carry – concealed carry..." is the opposite of what Rhode Island does today, but, in his moronic opinion, he concluded the opposite is true (Open Carry can be banned in favor of concealed carry).

Apparently, the judge skipped Logic 101 in college.

Also, only cowardly, depraved degenerates carry concealed weapons.

[Currentsitguy]

So not wishing to cause undue alarm is degenerate?

[Charles Nichols - CRTC]

Currentsitguy - Failing to give fair notice to those around you that you are armed, so they may govern themselves accordingly and take necessary steps toward self-preservation, is an act of moral turpitude.

It always has been.

[jimc5499]

Even though it is legal where I live, open carry will get the Police called on you in a heartbeat. 9 times out of 10 that will get your weapon confiscated and it's a pain in the ass to get it back. I've had them called on me for carrying my rifle to the gunsmith in a case.

[Frank Drackman]

Just consider everyone to be armed, like I do (and am), and you'll be fine.

[Harvey Mosley]

Can you please explain why someone needs to be warned that I'm not an easy victim for them to not attack me?

Occasionally you come up with some stuff that's on the edge of sanity, almost to the point of actually making sense, and then you spout this bullshit.
Am I still a "...cowardly, depraved degenerate..." if I cannot open carry without getting arrested? Or is it your opinion that only those who live in jurisdictions that allow open carry should be able to defend themselves? Would it make a difference if I wore a cap that said "I'm a proud CCW'er"?

[Charles Nichols - CRTC]

Harvey Mosley, Open Carry is moral; concealed carry is an act of moral turpitude. Because you are a cowardly, depraved, degenerate, morality is beyond your understanding.

[Poxigah146]

If whiny girly men (mostly Democrats) and women are "alarmed," that's on them.

[Supremacy Claus]

I feel alarmed when I see a guy in a suit and tie, carrying a briefcase. I get alarmed when I see a guy in black priest robes with a wooden hammer, out to destroy our country. They need to be restricted.

[wvattorney13]

That seems like a stilted reading of the holding of Bruen.

I think a more proper view would be that although states may not ban carry entirely, or even regulate it in such a way that might prevent people from carrying, they can regulate the manner of carry.

If the state prefers open carry but not concealed, then fine. Likewise, if it prefers concealed carry but not open, that's fine as well. The point is that people can reasonably carry guns.

I think you have read the relevant history in a hyper literal way.

[Charles Nichols - CRTC]

wvattorney13 - The legislative and judicial history of the Second Amendment tells us that concealed carry is an evil act. Bruen said that the Constitution means what it meant when it was adopted. No legislature, court, or authority even hinted that concealed carry was a right protected by the Second Amendment, let alone that Open Carry could be banned in favor of concealed carry.

It appears that you have sided with the NRA lawyer Paul Clement's argument that Open Carry can be banned in favor of concealed carry because people today are on a different wavelength from those who enacted the Second and Fourteenth Amendments.

There is no such thing as a different wavelength doctrine of constitutional interpretation.

[Tim]

The idea is that the principles / standards are the same then as now. Not that the facts are the same, or that all the opinions & judgments that people made about situatioms are enshrined in the Constitution.

If people at the time thought that Jebediah's Gun Works produced terrible quality unsafe guns that could be banned because they're so bad, while other gun companies products couldn't be ... That doesn't mean Jebediah's Gun Works can be banned today. It means that banning a specific company's products due to poor quality workmanship doesn't violate the Second Amendment.

[wvattorney13]

"The legislative and judicial history of the Second Amendment tells us that concealed carry is an evil act. "

It does no such thing. The first laws against carrying concealed weapons were state laws enacted in the 1820s. This was at a time when the 2A had no applicability to the states.

[Tim]

Yes and no.

Most or all of the states did have their own provisions protecting the right to keep and bear arms.

And courts from one state would refer to decisions from other states, to help understand what the general law right to keep and bear arms meant.

The constitutions were seen as protecting the same general preexisting right, not creating similar but separate rights. The only basis for seeing them differently was if the language of a particular State's Constitution created different exceptions or modifications to the protection of the right.

[Charles Nichols - CRTC]

wvattorney13, the first statewide law prohibiting concealed carry was enacted in 1813. The use of a concealed weapon to kill one's opponent without first displaying the weapon and giving one's opponent the opportunity to decline combat or to similarly arm himself was punished by death, without the possibility of a pardon or lesser punishment (called "benefit of the clergy" at the time). That was English common law before the first English colony was established in America.

State high courts routinely characterized concealed carry as evil and held that prohibitions on concealed carry do not violate the Second Amendment. Section III of District of Columbia v. Heller opened by saying the 19th-century prohibitions on concealed carry do not violate the Second Amendment. Heller said that Open Carry is the right guaranteed by the Second Amendment.

An attorney would know this if his family tree had branches. But your handle says you are from West Virginia, which explains a lot.

[Stephen Lathrop]

In academic historical practice, it is axiomatic that the text of a law is no more than a point of beginning for a historical query. An antique legal text arrives in the present devoid of all the contemporaneous context which inflected its creation.

At the outset, the historian has no way to know whether the law in question was intended to be enforced at all, or was perhaps passed in a spirit of political exhortation—a practice surprisingly commonplace long ago, and still today. Or, more subtly, the intent could have been—and often was in colonial America—to present a law severe on its face, with expectation for lax enforcement in practice.

Does the legal text reflect expectation that the law would be enforced uniformly in an egalitarian society, or selectively in a class-bound society? Is there any likelihood, given differing class characteristics in widely-separated locations, one rule of construal would capture historical practice everywhere? The opposite is the more likely historical bet.

In such varied historical cases, how to answer a question which practices represent history and tradition? Would it be enforcement practiced in only a small fraction of a jurisdiction, but conforming closely to a legal text, or an alternative practiced everywhere else without regard for the text, or in actual defiance of it?

Even if the intent encompassed an ambition for uniform enforcement, a question whether any law could be uniformly enforced in the political jurisdiction in question needs investigation. Some founding era jurisdictions were more notional than otherwise, with an actual legal expectation that given a lack of even a qualified magistrate in the district, enforcement of only the most serious charges would occur.

In such instances a visiting magistrate might be brought to the jurisdiction to hear the case. Otherwise, there was often expectation that a thinly-spread population could get by with a good legal leaving alone.

Questions of those kinds must get consideration, before any conclusion that a legal text fairly represents the history and tradition of some bygone time and place. In America's colonial era, some courts held non-Christian Indians to more lenient standards than they used for white Christians, whom a court might presume to be more justly constrained by moral strictures.

The historical record—construed broadly to encompass actual activity, is full of surprises. Those who made laws in such times and places were of course better cognizant of their realities then than we are today. That cognizance forms an indispensable part of the history and tradition to be reckoned with.

Thus, legal texts alone rarely if ever adequately capture the essence of the expectations which inspired their enactment, let alone the activities in response which became the actual American historical traditions. Bruen's methodological prescriptions amount to demands not for uniformity or constraint of the judicial process, but instead for historical malpractice in service of a present-minded agenda.

[Soronel Haetir]

The one thing I would say is that RI still requires a permit to carry (even if it *is* shall-issue). Being able to open-carry with no government paperwork is *not* the same thing as carrying concealed without.

[Poxigah146]

The only rights leftists care about are the pelvic rights they invent.

[ah....Clem]

One obvious implication is that you can only conceal on your person a weapon up to a certain size. So I can't bring my shoulder-launched surface-to-air missile to the beer store, I have to leave it in the truck.

Surprised that there's not more yelling and hair pulling about this...

[Absaroka]

If I'm reading the OP right, this is about carrying handguns - no permit is needed for rifles/shotguns/missiles.

So a Buntline Special might be problematic, or the quasi-rifle AR or bolt action pistols, but not long guns.

[Charles Nichols - CRTC]

Absaroka - Open carry of loaded long guns along public roadways is prohibited by law in Rhode Island.

[NvEric]

See below

[Frank Drackman]

No person who knows anything about guns calls them a "Long Gun", they're friggin "Rifles"
Congratulations,
as Comedian Bill Engvall (don't think he's funny? you haven't heard his "Blue" material) says
"Here's your Sign!"

Frank

[NvEric]

And, muzzle loaders are not firearms ( federal )

[Charles Nichols - CRTC]

NvEric - Muzzle loaders are not firearms under U.S.C. 922. Walk into a Federal or California State courtroom carrying a muzzle loader. You will discover that muzzle loaders are firearms.

[Frank Drackman]

That's why I carry a knife.

[Brett Bellmore]

I love the "No Concealable Weapons" signs I keep seeing in NC store windows. You mean, I can bring in an anti-materiel gun? No way that sucker is concealable!

[Kazinski]

Well its not that big of a restriction when there are similar alternatives readily available.

I was surprised to see an advertisement recently for Double Barreled Blackpowder Shotgun Pistols, that can shoot a .715″ solid lead balls, or .350" buckshot. Best of all its exempt from background checks and can be shipped mailorder with no paperwork.

https://internationalsportsman.com/double-barreled-12-gauge-shotgun-pistol-review-the-diablo/

Maybe not quite the range of a shoulder fired missile, but still pretty impressive.

[NvEric]

Sensible suggestions for a stupid topic:
Open carry, but the ammo must be concealed ?
Concealed carry, but the ammo must be visible ?
How about open carry if the caliber under .32 and concealed carry for the larger stuff ? No, the opposite !
Revolvers, open or concealed, must be worn at the ankle ?
Why not concealed automatics, with the clip(s) in the underwear, panties, or thong ?

[Randal]

And this is why Bruen is so stupid and not long for this world (already having had its wings clipped by Rahimi). It stands for no discernable principle whatsoever. Just a bunch of random laws and whatever analogies a creative lawyer or judge can fathom from them.

[Brett Bellmore]

Once you've got judges willing to engage in sophistry, as these did, no principle really matters.

[Randal]

They're just following the examples of sophistry set in Bruen and Rahimi. Sophistry is the principle.

[Brett Bellmore]

Well, Rahimi was certainly sophistry, I'll give you that much. The Court only pretended to follow Bruen. (Queue up Sarcastr0 to claim that Thomas didn't know what the opinion he wrote really meant.)

Bruen was a workable approach for disinterested judges who just want to get the law right, and don't really give a damn what "right" turns out to be. (Which is the way judges SHOULD approach the law: They're charged with upholding laws and a Constitution OTHER people wrote, not them.) The only problem with it is that it correctly dictates an outcome that modern judges are culturally hostile to: Almost all modern gun laws are unconstitutional.

Well, almost all modern gun laws ARE unconstitutional. They were adopted during a period when the Court was pretending that there wasn't any constitutional right to keep and bear arms, are widely premised on the idea that gun ownership is a privilege, and a heavily disfavored privilege at that. Why would you expect such laws to be consistent with the 2nd amendment? In fact, much of today's gun control was originally adopted as part of Jim Crow, and intended to violate rights!

The sophistry here is particularly crude. The same 'reasoning' would declare that, since the founding generation thought laws against sodomy were constitutional, you could today outlaw all forms of sex except sodomy... Since banning obscenity was constitutional, you could ban everything BUT obscenity. It's ludicrous reasoning.

[Randal]

Bruen was a workable approach...

You are the only person other than maybe Justice Thomas who thinks this.

Even if you think SCOTUS is capable of doing honest, novel historical research for every new gun law a state thinks up -- which Bruen proved they are not -- there's no way district courts are so capable.

[Brett Bellmore]

Thomas was the only person on the Court who actually WANTED to apply Bruen in the Rahimi case. "Workable" doesn't mean that people WANT to do something, it means they'd be able to do it IF they wanted to.

It was perfectly possible to apply Bruen in the Rahimi case, it's just that 8 of the 9 justices found the results of doing so unacceptable, and refused to.

If they'd been a bit more honest they'd have admitted they were abandoning Bruen, but I suspect the problem was that there wasn't any alternate standard they could agree on, and they didn't want to admit they were just making an unprincipled decision because they didn't like where Bruen pointed them.

The present Court has 3 justices who'd uphold virtually any gun law whatsoever, 1 justice who actually wants the 2nd amendment upheld in a principled way, and 5 justices who may individually have some principle behind what they're doing, but can't agree about it, so they're just going to make up some BS in any given case to arrive at a conclusion they're comfortable with.

So we're going to be stuck with unprincipled BS gun decisions, where they can't find some way to avoid taking the cases, and they're VERY good at avoiding taking cases.

[Stephen Lathrop]

Workable" doesn't mean that people WANT to do something, it means they'd be able to do it IF they wanted to.

If that is all. "workable," means in a court of law, then the law has gone insane. And with Bruen, it did.

The law cannot be nothing but self-referential nonsense. It must connect outwardly. It must have capacity to govern the activities it purports to empower or constrain. Bruen delivers no useful guidance on how to do that.

Bruen irrationally decrees against systematic consideration of the historical and traditional principles it purports to rely upon. Plus which, even if relied upon systematically, those considerations would mostly fail to deliver useful guidance.

Bruen stands for building a legal structure using the fewest and flimsiest materials necessary to get it up, and once the structure is completed, systematically kicking out its foundational supports.

[Brett Bellmore]

Bruen stands for the idea that "shall not be infringed" actually MEANS "shall not be infringed", and if you want to enact a gun law, you need to prove that the people who wrote the 2nd amendment into the Constitution wouldn't have regarded it as an infringement.

Of course you're going to hate Bruen if you actively WANT to infringe this particular right.

[Grifhunter]

"Bruen delivers no useful guidance on how to do that." Yes it does. It kinda goes like this: A reviewing court would check first if the contested law infringes on the right to keep and bear arms. And if it does infringe, is the infringement at issue something that has some established origin in the founding era statutory schemes?

Works just like 1st Amendment jurisprudence: does the law infringe free speech or religion? If the threshold question gets answered in the affirmative, then the court moves to step two. "Is the infringement one that was historically and statutorily understood as outside the scope of the right (such as fire in a crowded theater)".

Same shit: been working for over a century.

[Aubrey LaVentana]

"You are the only person other than maybe Justice Thomas who thinks this."

No, he isn't.

[Incunabulum]

SCOTUS isn't required to do the research - those proposing restrictions are.

[wvattorney13]

I would agree with that except the asides, demurrers, and examples given in Bruen show that not to be the case--that several gun laws with scant historical pedigree were allowed.

Thomas' analysis of sensitive places was suspect. Because of one MD law in the 1600s prohibiting carrying in the legislature and a DE law in 1776 prohibiting the militia from gathering near polling places, Thomas reasoned the whole sensitive places doctrine into existence. No talk about "outliers" or the fact that they predated the Second Amendment. He even said that the lack of a challenge to those laws upheld their validity---despite being enacted by the British Crown with no opportunity for judicial review even if one was inclined to do so.

He also baldly declared that shall issue concealed carry was constitutional despite those laws having a 20th century pedigree.

Kavanaugh, in concurrence, joined by Roberts, votes necessary for a majority stated, "Properly interpreted, the Second Amendment allows a 'variety' of gun regulations" and then cited Heller's ipse dixits about felons and schools.

How that result was reached by Bruen is left unsaid. No doubt lower courts are purposefully undervaluing the 2A. However, the finger can be pointed at Bruen for not following itself in that very opinion.

[Brett Bellmore]

Thomas still looks like a pillar of principle next to the rest of them.

I've said before that you simply can't expect to find principled originalists on the Court, nobody who was suspected of being one would ever be nominated to the judiciary, because most of what the federal government is doing today is unconstitutional.

They're not going to nominate to the Court anyone who'd rule that the whole regulatory state is unconstitutional BS, and that a reversion to pre-Wickard understanding of the commerce clause was mandatory. It's just not happening, Thomas is about as good as it's going to get.

[Carlos Inconvenience]

“ For more on this sort of analysis, which focuses on the magnitude of the burden on the constitutional right,…”

Sounds like the court is back door issue balancing again, which Bruen prohibited

[Brett Bellmore]

"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."

Hm. It's constitutionally valid to prohibit convicted counterfeiters from owning printing presses, I'd venture to guess. Does this imply that 'shall issue' licensing of printing press ownership is permissible? With training requirements, waiting periods, and hefty fees?

I go for a more basic analysis: A "right" is something which you don't need the government's permission to do. And a "license" is the government's permission to do something. So how can licensing the exercise of a right ever be permissible? It's a fundamental and glaring contradiction!

Maybe if, instead of "shall" issue, you had automatic issue? Where everyone gets the permit as they reach the age of majority, for free and without any requirements, and it can only be taken away as a consequence of a felony conviction? That would make it much more difficult to use onerous issue requirements to deliberately burden the exercise of this right.

But, of course, the burdens are the point of requiring the license... It seems deliberately oblivious to ignore that.

[Randal]

Do you think marriage licenses exist in order to burden the right to marry?

[Brett Bellmore]

I think marriage licenses exist to organize government privileges allotted on the basis of marital status, but the existence of common law marriage makes clear that marriage traditionally didn't actually require that you have a license.

Simply keeping and bearing arms does not require any privileges, but you could, under my understanding of the relationship between rights and licensing, have licenses that were required to exercise privileges which were NOT constitutionally protected, so long as the actual right wasn't conditioned on having a license. Bearing arms on government property, maybe, things like that.

[Randal]

marriage traditionally didn't actually require that you have a license

Right, so... does your argument apply to marriage licenses? Are you saying that they too are a deliberate, modern burden on a traditional right?

[Brett Bellmore]

Only in states that have abolished common law marriage.

[Randal]

I don't think anyone's trying to deliberately burden marriage, so if you can't distinguish marriage licenses from firearm licenses it undermines your case that firearm licenses are a deliberate burden.

[Brett Bellmore]

Well, of course, if you deny that everything that is done to restrict exercise of some right is a "burden", then tautologically nobody is "burdening" the right.

Back in the real world, of course people are trying to deliberately burden marriage, in the normal sense of "burden", which is to say, making it harder. Multiple states have abolished common law marriage, outright requiring a state license to get married. There are all sorts of restrictions on who can marry who.

[Randal]

I don't think they're trying to reduce the rate of marriages out of some sort of hostility to marriage, which is what you're implying about firearm licenses.

[Brett Bellmore]

I'm not implying it, I'm stating it flat out: States like California are hostile to the 2nd amendment, and deliberately make the "shall issue" laws the courts forced them to adopt as onerous as possible.

[Randal]

Maybe, but you need to show evidence of that. Just saying "of course, the burdens are the point of requiring the license" doesn't cut it, because we have examples of licenses that the burdens are not the point of.

[Harvey Mosley]

"Maybe, but you need to show evidence of that. Just saying "of course, the burdens are the point of requiring the license" doesn't cut it, because we have examples of licenses that the burdens are not the point of."

You want evidence? Just look at the number of gun control laws California has proposed and passed in the last (you pick) 5, 10,15, 20 years and tell me they aren't trying to make it harder, more expensive and more "icky" to own a gun.

You can't just look at CCW issuance in a vacuum in California. If you did California would look like it was becoming freer than before because it most counties you had to know or blow the local sheriff to get a CCW.

[wvattorney13]

I think experience shows that in states like NY, MD, and CA gun licenses are enacted precisely to keep people from owning and carrying guns whereas marriage licenses are record keeping requirements.

A marriage license is similar to the banns posted on the church door in centuries past or bonds required by colonial legislatures to ensure the marriage was legal.

[Absaroka]

"marriage licenses are record keeping requirements"

Long, long ago - but during my lifetime - a number of states required blood tests to get a license, predominantly to check for VD. My memories are getting dim, but I recall it being a bit of hassle for friends wanting to make a weekend trip out of state to marry at their parent's house. You had to get the test in the destination state or some such, and getting the results took several days. I don't remember the resolution.

TBH, prior to penicillin, a test sounds like a good idea: "Syphilis was relatively widespread in the first half of the twentieth century, estimated to affect more than 10% of Americans during their lifetime, with many of those afflicted unaware that they were carrying the disease". Whether a test should be mandated or optional can be debated. I'm sympathetic to the argument that a 10% incidence and the awkwardness of broaching the topic with the love of your life makes a mandate reasonable. Kids with birth defects are a bad thing.

[Davy C]

No. It's legal to move in with someone and have kids without getting married, though. You could even have a religious ceremony. The government license is for the government benefits. So the analogy isn't really apt.

[Randal]

Well, it's legal to defend yourself without using a firearm too. I'm not sure what that proves.

[Brett Bellmore]

The right is the right to keep and bear arms, so it's the keeping and bearing that you have a right to, the self defense is more of an unenumerated right.

The point is that you could have a licensing regime for special gun related privileges, the same way marriage licenses qualify you for marriage related privileges, but the owning and carrying of the guns are not privileges, and so should not themselves be subject to licensing.

[Randal]

No, the right to marriage is the right to get married. It's not the right to live together and breed.

[Brett Bellmore]

I'm not quite clear how you distinguish these.

[Randal]

Then perhaps you have as little knowledge about the right to marry as these judges seem to have about the right to keep and bear arms.

[Brett Bellmore]

Could you possibly explain the difference?

[wvattorney13]

It is the societal recognition of your relationship as one where you pledge to each other and the community that you will be together for life. It allows your kids to be legitimate in the eyes of the law.

Living together and having kids used to be illegal and would deny your children the rights of inheritance. There still remain inheritance issues for unmarried couples.

[jb]

So by this theory, bigamy laws can't be enforced unless someone applies for two marriage licenses and/or only exist to prevent someone double-dipping into marriage-related benefits? Seems like the government is occasionally called to recognize something that looks like a marriage for reasons that have nothing to do with government benefits.

[Aubrey LaVentana]

good question. When and where were government marriage licenses introduced, by whom, and for what end? do they serve that purpose today? Are they used for ulterior purposes?

[Incunabulum]

Yes.

A marriage contract would just be registering your marriage with the state. You are married when you say you are married, you're just registering that marriage for whatever reason - say to get whatever government granted *privileges* are provided to married people.

A marriage license, by definition, is the state giving you permission to marry. Even if approval is automatic you still have the burden of asking and you are not married until it is given.

[Brett Bellmore]

And, of course, these permits aren't really automatic: They generally require meeting some training mandates, and paying a fee. Deliberately burdensome in the "usual suspect" states like California.

Funny how paying a tax as a requirement of voting is impermissible, but paying a tax in order to exercise your 2nd amendment rights is just peachy.

[Incunabulum]

Arizona solved it by no longer requiring permits. You can get one, they're just not required. Other states could do the same.

[Brett Bellmore]

Yes, the problem is that we're dealing with a handful of outlier states like California which are determined to do everything they possibly can to violate this particular right. So they're not going to go to 'constitutional carry' unless forced by the federal government.

In the end there's no substitute for the feds ceasing to pussyfoot around, and start treating the 2nd amendment like a real constitutional right. Which means treating states that deliberately violate it like states that deliberately violate any other right.

[Longtobefree]

An infringement is an infringement, no matter how small.
Would that judge accept a law that allowed unamplified open air speech, but prohibited amplified or broadcast speech?

[Old Smokin' Egg]

I'm curious about the justification offered for the RI prohibition on open carry, if one has a concealed-carry permit. Is the purpose to avoid alarming or intimidating people who encounter the carrier? Or is there concern that an openly displayed pistol might tempt the wicked to whack the pistol's carrier on the back of the head and take it, thus making firearms available to bad sorts who might otherwise not be able to acquire them?

And how concealed does concealed have to be, and what are the legal consequences of imperfect concealment? If I've got my artillery in a belt holster under my unzipped jacket, but someone standing at just the right angle could see that I've got it, have I violated the no-unconcealed-carry conditions of my permit?

Requiring concealment seems like it'd impose a set of absolute restrictions on carrying firearms, too—what if I feel like I need protection against assault or robbery at the beach?

[Absaroka]

Good questions.

The concern about open carriers being targeted by crooks is valid in urban settings. I think it's generally unwise, and it you are going to do so you should take a retention class and consider a retention holster.

"what if I feel like I need protection against assault or robbery at the beach?"

A fanny pack is one traditional solution. There are holsters designed to conceal under sweats, yoga pants, and the like. Small guns (e.g. Ruger LCP or one of the lightweight snubnose revolvers) can be carried in a lot of pockets. Their are pocket and wallet holsters.

[Incunabulum]

Legislating based on potential threats is like laws mandating you lock your door because it makes the police's job easier since there will be fewer thefts.

The second is going to impose a greater burden than open carry because either you are going to need more than one firearm to coordinate with your outfits our your selection will be limited to a single gun that can be concealed in all public places.

[Brett Bellmore]

I can relate what happened in Michigan, anyway.

Michigan was, legally, an open carry state. The problem we faced was that in a few anti-gun jurisdictions like Flint or Detroit, if you openly carried you would be accused of "brandishing" if you made sure the gun was visible at all times, and "illegal conceal" if you so much as let an arm hang in front of a gun, or wore a jacket that might obscure your holster. There was, intentionally, no winning, as the goal was to just prohibit carry altogether, and the same jurisdictions only issued conceal carry permits to a few politically connected people.

By getting shall issue concealed carry licenses, the police in those jurisdictions wouldn't know who to hassle, and were stripped of a lot of their excuses for hassling you even if they knew. (They tried substituting "printing" for "brandishing", but that was fairly easy to defeat.)

But, at the same time, since the state WAS an open carry state, legally, you didn't have to conceal if you didn't want to, but the permit still protected you from false concealment charges.

[ReaderY]

It seems to me that the commenters objecting to the opinion have not really grappled with Rahimi. They are reflexively attached to their interpretation of Bruen without acknowledging that Rahimi modified it. Rahimi rejected strict historicity. It instead said that modern laws are acceptable if they are comparable or analogous to historical ones in terms of the burden they impose on the right to bear.

It seems to me that based on this interpretation of Rahimi, the judge is right here. A right to concealed carry only imposes a burden on the right to bear arms analogous to the historical right to open carry. It’s not exactly the same. But Rahimi said it doesn’t have to be the same. It just has to be analogous and impose a comparable burden. And I think there’s a good argument that this is the case.

This means that the Rhode Island Legislature is entitled to impose its conception of the public good, including public mores and sensibilities, as it sees it. Many commentators have said that concealed carry is cowardly and open carry morally preferable. But it is the right of the Rhode Island legislature to legislate morality as it sees it, not as you or I might see it. In this matter as in many others, different people in a pluralistic society may have different conceptions of morality, and the fact that each is certain that theirs is the one true and correct one no more changes this on this matter than it does on any other.

Finally, my own interpretation of the 2nd Amendment would reject this result. As I see it, the right to keep and bear arms, although an individual right, nonetheless retains a connection to militias and militia use. Because militias were open carry, the right as I see it is to open carry only. But the Supreme Court has completely rejected this interpretation. And the judge here is obligated to follow the Supreme Court, not me.

[Brett Bellmore]

The problem is that Rahimi DIDN'T purport to modify Bruen, it pretended to comply with Bruen. So Bruen is still nominally the standard, except that we know the Court won't apply it honestly, or require lower courts to, but neither is the Court being explicit about what the new standard is.

You're assuming a new standard, but for all we know all five of the justices who switched between Bruen and Rahimi have different lines in the sand, so it's anybody's guess how they'll rule in any given case.

[ReaderY]

Of course it did. It complied with what Rahimi really meant.

Numerous Supreme Court opinions that claim to comply with previous precedents comply with a re-interpreted (i.e. altered) version of them.

The Rahimi Court is simply no different in this respect.

If you beleive Rahimi’s claim that it didn’t alter Bruen, you probably also believe Justice Burger’s claim in Roe that the Supreme Court was in no way legalizing abortion on demand.

[Brett Bellmore]

If you mean that pretending to follow precedent and law while doing nothing of the sort, "This always meant A" seamlessly changing to "This always meant B", has long been how the judiciary operated, I suppose I can't argue with that.

Rahimi claims not to have altered Bruen, Rahimi conspicuously does not comport with Bruen. So the question is, what the heck is the NEW rule that pretends to be the old rule?

I say they can't agree yet, which is why they haven't told us.

[wvattorney13]

Rahimi added to the problem instead of clarifying it. It seems that had Rahimi simply beat his girlfriend to within an inch of her life using his fists and not brandishing a gun, then the two supposedly analogous laws---the surety laws and the going armed laws---would not be applicable and thus he could not be disarmed.

[JonFrum]

So what's the problem? If you can't carry openly, hang a cloth over your holster with Gun On Board printed on it in red letters.

[Incunabulum]

1. This only works if concealed carry is not required to be licensed - not even 'shall issue' licensing.

2. This also doesn't work because concealed carry requirements leave a lot of room for harassment if the firearm is inadvertantly visible - even from 'printing' - such as bending over and a shirt riding up. This is a greater burden on the exercise of 2nd amendment rights than open carry.

3. The question I would have is why is there a focus on manner of carry - concealed or open? Just because you can't see a gun doesn't mean it's not there regardless of the legality of concealed carry. Neither does seeing. A firearm mean there is a danger from the wielder. Do we allow the most fearful of us to drive public policy?

[Aubrey LaVentana]

"Do we allow the most fearful of us to drive public policy?"

see Federal and State responses to COVID 19.

[JoeFromtheBronx]

An article about applying an opinion that was significantly "interpreted" by a later one is ready for an update.

[Frank Drackman]

In 40+ years of carrying concealed I've been hassled exactly once, by a Mall Cop in Mobile, Alabama. It was winter, 1985 and cold in Mobile (HT J. Friday) you know, high 50's, so I walk into the Mall, had my hands in my pockets (like I said, it was cold).
Officer Jim Bob or Cleetus or Sea Bass says "Wat yew got in yo pocket (boy) ??!?" and proceeded to "search" me,
"All Rat, guess you're OK" and let me continue,
Totally missing the S&W Model 28 ("Highway Patrolman" model, it's the same N-Frame as Dirty Hairy's Model 29 44 Magnum, but in .357 Magnum) in my jacket pocket.
It's a heavy gun (and a dream to shoot in 38 special, almost no recoil)
And I'm no Paul Kersey, but having Smith & Wesson on my side has saved me a number of ass beatings/robberies over the years.
So that old bald Jewish guy who dressed nicer than he should be?
Might be me. Don't ask what he's got in his pocket. You might find out.

Frank

[Daddyhill]

The article doesn't help me understand why someone would feel adequately protected by one manner or the other, or only by both. Does one prefer open-carry because a potential assailant would recognize you as a badass and not confront you in any way? Does one prefer concealed carry because a potential assailant wouldn't know immediately that you are a badass, but you know you are, and you're ready, willing, and able to prove it to said assailant? Help!

[Absaroka]

1)It can be as simple as convenience. We have a cabin in rural Montana. We routinely see bears (in the flesh and on trail cams) and cougars (cameras only so far). Pretty much everyone carries. In t-shirt weather, it's open carry. In winter, it's concealed.
Even in the city, if I walk to the store in the rain concealed is easier. If the sun comes out and I want to take the coat off, open might be nice. OTOH if you are open carrying on a backpacking trip, if it starts raining you might want to just put on a raincoat without arranging things so the gun sets out in the rain.

2)As mentioned above, open carry (in the city, where you are perforce going to be standing in close proximity to people in the checkout line or whatever) might deter some crooks, but it might attract others; guns are valuable to crooks after all. I generally think it's a bad idea. FWIW the police I know who carry off duty invariably do so concealed.

The bottom line is 'it depends'.