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