Feb 22, 2013

10th Circuit: “carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause”

The 10th Circuit released an opinion holding that the Second Amendment does not protect the right to carry a concealed firearm outside the home. Here is the crux of the analysis.

With respect to Peterson’s claims against the Denver sheriff, we conclude that the carrying of concealed firearms is not protected by the Second Amendment or the Privileges and Immunities Clause. In Robertson v. Baldwin, 165 U.S. 275 (1897), the Supreme Court stated in dicta that “the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.” Id. at 281-82. More recently, in District of Columbia v. Heller, 554 U.S. 570 (2008), the Court noted 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 explained that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions.” Id. at 626. In 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.

We reach the same conclusion with respect to Peterson’s claim under the Privileges and Immunities Clause, U.S. Const. art IV, § 2, cl. 1, which is coterminous with his right to travel claim. As the Supreme Court explained in Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988), “it is only with respect to those ‘privileges’ and ‘immunities’ bearing on the vitality of the Nation as a single entity that a State must accord residents and nonresidents equal treatment.” Id. at 64-65 (quotations and citations omitted). Because the concealed carrying of firearms has been prohibited for much of our history, we conclude that this activity fails the Friedman test.

A concurring opinion found, even assuming that the right was protected by the Second Amendment, that the countervailing security interests would pass constitutional muster.

Even were concealed carry protected under the Second Amendment or the Privileges and Immunities Clause, I would yet affirm. I separately add this coda to advance an alternative basis for affirmance. Assuming that concealed carry were to be protected under the stated clauses, I nonetheless would remain in substantial agreement, on an alternative basis, with the analytical framework adopted by the district court. I would apply intermediate scrutiny to both claims to the extent concealed carry is protected, and would hold that the state has carried its burden under that standard. As part of its general public safety interest, Colorado has shown that ensuring CHL holders are qualified under state law is an important governmental objective. The state also proffered unrefuted evidence demonstrating that much of the information necessary to determine whether an individual is qualified for a CHL is kept in locally maintained databases, and that Colorado sheriffs do not have access to such information with respect to non-resident applicants. In light of law enforcement officials’ averments that they would be effectively unable to determine whether a non-resident applicant is qualified to obtain a CHL, I conclude that the residency requirement is substantially related to the stated governmental objective.

The 10th Circuit is now in conflict with the 7th Circuit, which today denied rehearing en banc a case in which Judge Posner held that the Second Amendment does extend outside the home. I wonder if they held this opinion pending the rehearing en banc. Curiously, Madigan is not even cited!?

With a circuit split, to SCOTUS we go.

H/T How Appealing

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Feb 22, 2013

Blackman’s Boots and Shoes

Apparently there is a famous shoe store in the London called “Blackman’s Boots and Shoes.” It’s been in business since 1935, and is still in operation as a father-son business.

Retronaut has collected some great pictures.




As far as I know, there is no relation.

Here is a video.

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Feb 22, 2013

7th Circuit Denies Rehearing En Banc in Illinois Conceal Carry Case 5-4

Today the 7th Circuit denied rehearing en banc in Moore v. Madigan 5-4. Voting against rehearing were Chief Judge Easterbrook, and Judges Posner, Flaum, Sykes, and Tinder. Dissenting from the denial of rehearing were Judges Hamilton, Rovner, Wood, and Williams. Judge Kanne did not participate.

I blogged earlier about the Madigan decision here. I guess attempts at urging Judge Posner to change his mind failed.

Judge Hamilton issued a dissental begging the Supreme Court to take the case.  It focuses quite heavily on the social costs of the Second Amendment:

In so many public settings, carrying and using firearms present lethal risks to innocent bystanders. Yet when people go about their daily lives in public places, they have no choice about whether to consent to the dangers posed by firearms in public. We can all choose whether to visit homes where firearms are present. To illustrate the dangers posed by lawful use of firearms in public, consider a deadly confrontation on the streets of New York City in August 2012, when police confronted an armed man who had just shot and killed another man. The police officers were well trained in both how to shoot and when to shoot and not shoot. The officers fatally shot the gunman, but the officers’ many shots also wounded nine bystanders. I intend no 1 criticism of the officers, who confronted an urgent, dan-gerous situation that few have experienced first-hand. We will always need armed police officers, and some harm will be unavoidable despite their training, skill, and experience. But consider how much worse the situation on the crowded streets of New York might have been if several civilians, without the officers’ training but carrying firearms lawfully, had tried to help with their own firearms.

Isn’t this an argument about why police officers should shoot innocent people less?

Unless the Supreme Court is prepared to embrace the view attributed to it by the panel majority, that the Second Amendment right to bear arms does not depend on “casualty counts,” 702 F.3d at 939, we should not assume that the logic of Heller extends naturally and without qualification to firearms in public.

This tees up the issue for the Court in stark terms.


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Feb 22, 2013

Video: Presentation of “Unprecedented: The Supreme Challenge to the ObamaCare.”

This will be the preview of my book-tour presentation. I gave the dry run to the Houston Metropolitan Paralegal Association 34th Annual Full Day Business & Litigation CLE Seminar, Houston, TX on February 15, 2013.

It was a packed house with almost 100 in attendance.


It got a great reception. I look forward to doing this talk dozens of times throughout the country over the next year. Coming soon to a city near you 🙂

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Feb 22, 2013

Which Justice has the best seat on the Court?

I recently realized that Justices Holmes, Cardozo, and Brandeis shared the same seat on the Court in succession. That is pretty awesome. Here are some of the previous residents of the Nine

  • Chief Justice Seat (Created by Judiciary Act of 1789) – Roberts: Rehnquist, Warren, Vinson, Stone, Hughes, Taft, Chase, Taney, Marshall, Jay
  • Seat 1 (Created by Judiciary Act of 1789): Sotomayor, Brennan, McReynolds, Peckham, Bushrod Washington
  • Seat 2 (Created by Judiciary Act of 1789): Breyer, Frankfurter, Cardozo, Holmes, Story.
    Dare I say, this may be the most illustrious Associate Justice seat on the Court. It is also the most Jewish seat with Cardozo, Frankfurter, Goldberg, and Breyer reclining in it every Passover.
  • Seat 3 (Created by the Judiciary Act of 1789): Kagan, Stevens, Douglas, Brandeis, Chase
  • Seat 4 (Created by the Judiciary Act of 1789): Kennedy, Powell, Black, Van Devanter, Livingston (from Pierson v. Post!), Rutledge
  • Seat 5 (Created by the Judiciary Act of 1789, but abolished by the Judicial Circuits Act in 1866)
  • Seat 6 (Created by the Seventh Circuit Act of 1807): Ginsburg, White, Sutherland, Hughes
  • Seat 7 (Created by the Judiciary Act of 1789, but abolished by the Judicial Circuits Act in 1866)
  • Seat 8 (Created by the 8th and 9th Circuit Act of 1837): Alito, O’Connor, Stewart, O. Roberts, Harlan I
  • Seat 9 (Created by the 10th Circuit Act of 1863): Scalia, Rehnquist, Harlan II, R. Jackson, Field.
    If Breyer’s seat is the top seat, this may be a runner-up. 
  • Seat 10 (Created by the Circuit Judges Act of 1869): Thomas, Marshall, Clark, Butler. Really slim pickings for CT.

Excluding the Chief, Breyer’s seat is probably the best, followed by Scalia’s seat, with Kagan in a distant third (if nothing else due to the longevity of its occupants).

Speaking of which, Happy President’s Day!

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