The U.S. 10th Circuit is the latest Circuit Court of Appeals to weigh in on regulations that restrict the carrying of concealed firearms. It ruled on Friday, February 22, 2013 that "the carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause."
The decision comes just months after two other Circuit Courts of Appeals issued opinions regarding concealed carry gun laws. The U.S. 2nd Circuit in New York upheld a "proper cause" requirement for concealed carry gun licenses in Kachalsky v. County of Westchester, and the U.S. 7th Circuit in Illinois struck down a concealed carry firearm ban in Moore v. Madigan.
As we previously discussed, these cases all look to the U.S. Supreme Court's holdings in District of Columbia v. Heller from 2008, and McDonald v. City of Chicago, decided in 2010. Heller struck down a District of Columbia prohibition on the possession of usable firearms in the home because the law banned "the quintessential self-defense weapon" in the home. However, the Heller opinion is limited to the home, and significantly did not purport to infringe on state regulations of guns.
"[N]othing in our opinion should be taken 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."
McDonald confirmed that the Second Amendment's protections apply to the states through the Fourteenth Amendment, but also confirmed that the rights are not absolute and longstanding regulations are "presumptively lawful."
Neither case fully defined what rights existed under the Second Amendment for persons to carry guns in public, and the ancillary question of to what extent states could regulate the same.
10th Circuit: Petersen v. Martinez Holds that the Carrying of Concealed Firearms is Not Protected By the Second Amendment
Gray Peterson, a resident of Washington, applied for a concealed handgun licenses from the sheriff in Denver, Colorado. Under Colorado law, sheriffs may only issue the licenses to state residents. Peterson was denied a license, so he filed suit, claiming that the Colorado statute violated the Second Amendment, and the Privileges and Immunities Clause of Article IV.
Citing District of Columbia v. Heller's statements 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 that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions," the 10th Circuit concluded that "[i]n 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."
The 10th Circuit used a two step approach to its analysis, first asking whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee, and if it does not impose a burden, it is constitutional. If it does, then the court evaluates the law under some form of means-end scrutiny.
The type of scrutiny applied is an important issue, given that it can obviously greatly affect the chances of surviving constitutional scrutiny. Heller did not set forth what standard of review should be used for laws that affect Second Amendment rights. The 2nd Circuit applied intermediate scrutiny in Kachalsky, and the 7th Circuit in Moore noted that "Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety."
The Court reached the same conclusion regarding the Privileges and immunities Clause argument. Because the concealed carrying of firearms has been prohibited for much of history, Judge Lucero wrote, the activity does not rise to the level of one bearing on the nation as a single entity that a State must accord residents and non-residents equal treatment, a test set forth in Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988).
7th Circuit Denies Rehearing of Moore v. Madigan, But Dissent Provide Roadmap for Revising Law
The 7th Circuit also again weighed in on this issue on February 22, 2013, denying the request for rehearing of Moore v. Madigan, by a vote of 5-4, with one justice not participating. The denial left standing Judge Posner's opinion, issued on December 11, 2012, which struck down an Illinois law that banned carrying a gun in public as unconstitutional.
In the original opinion, the 7th Circuit had stayed its mandate for 180 days to allow the Illinois legislature "to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public."
The dissent to the rehearing denial is extremely detailed, and essentially provides a framework for how to craft a law that would pass constitutional muster. Judge David F. Hamilton opined that because the U.S. Supreme Court has not ruled on this issue, it deserved a rehearing by an en banc panel of the court. Further, he reiterated that "the qualitative differences between a private home and public streets and buildings that must be considered as we try to interpret Heller and McDonald," as discussed by the 2nd Circuit in Kachalsky.
Of significance, is his detailed discussion of what Judge Posner's decision did not decide and what was open to the Legislature to regulate. Judge Hamilton lays out what is basically a roadmap for any Legislature drafting laws to regulate the concealed carrying of firearms:
1 .Who: Illinois may regulate who may carry a loaded firearm in public, and Heller specifically held that felons and person with mental illness may be denied the right to bear arms. Judge Hamilton went further to state that reasonable requirements for firearms training and proficiency, including safe and responsible handling and use, should withstand constitutional scrutiny.
2. Where: Heller endorsed restrictions for sensitive places such as schools and government buildings. Judge Hamilton took this another step and argued that it would be reasonable to extend this logic to "areas around schools, courthouses, other government buildings, public universities, public libraries, hospitals, medical offices, public parks and forests, churches and other places of worship, banks, shopping centers, public transportation facilities and vehicles, and venues for sporting events, concerts, and other entertainment, among many possible examples. Additionally, citing GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1264-66 (11th Cir. 2012), he noted that nothing prevents private property owners from banning firearms on their premises.
3. How: Nothing prevents Illinois from setting reasonable limits on how qualified persons may carry firearms in public places where they are not prohibited.
4. Which: Nothing in the panel opinion, Heller, or McDonald prevents Illinois from imposing reasonable limits on which arms may be carried in public. "We can be reasonably confident that the Second Amendment rights are not limited to arms known to the Framers of the amendment, but also confident that the rights do not extend to all the arms that a modern militia might need."
Given the detailed framework provided in Judge Hamilton's dissent, it may be that Illinois will draft a new law, rather than appeal the opinion striking down its ban. However, with 10th Circuit's clear statement that the 2nd Amendment does not protect concealed carrying, which is directly at odds with the 7th Circuit, the U.S. Supreme Court hearing of this issue cannot be far off.
Anne O'Donnell is a recovering litigator who is now currently a Senior Writer for legal professional content at FindLaw.com. She practiced for 10 years in civil litigation in San Francisco.