Author Response: Interpreting Peruta v. County of San Diego by Joseph Greenlee
|Topics:||Civil Rights • Federalism & Separation of Powers|
|Sponsors:||Religious Liberties Practice Group|
I appreciate your response, although I do believe it is misguided.I’ll address each of your points below:
First, you contend that “Not a single one of the cases you cited upheld prohibitions on concealed carry ‘when, or because, open carry was available.’" I’ll walk through them in order.
- State v. Reid, 1 Ala. 612 (1840).
First, open carry was in fact permitted in Alabama at the time of the Reid decision. Indeed, the Attorney General defended the concealed carry ban by pointing out that “Every man was still left free to carry arms openly.” Id. at 614.
Second, the hypothetical scenario you reference in which the court decided that an open carry ban could not be tolerated even if concealed carry were permitted was specific to Alabama’s constitutional provision. The court was weighing the differences between Kentucky’s constitution and its own, and determined, “Under the provision of our constitution, we incline to the opinion that the Legislature cannot inhibit the citizen from bearing arms openly.” Id. at 619 (emphasis added). Alabama’s constitutional provision was based partially on self-defense, which is the core of the Second Amendment right, but it is important to note that the court was in fact interpreting its own state constitution in considering that hypothetical.
It could be argued that Reid rather supports the argument that in general terms, when the Alabama provision is not specifically at issue, a state must only keep some form of public carrying available. The Reid court considered a hypothetical posed by the Court of Appeals of Kentucky in Bliss v. Com., 12 Ky. 90 (1822), which had decided that it would be “absurd” for an open carry ban to be constitutional if enacted before a concealed carry ban, but unconstitutional if enacted after a concealed carry ban (or visa versa). The Kentucky court concluded, “the absurd consequence would thence follow, of making the same act of the legislature, either consistent with the constitution, or not so, according as it may precede or follow some other enactment of a different import.” Id. at 93. The Reid court disagreed with this: “In respect to the two prohibitory enactments supposed by the court of Appeals of Kentucky, we should be disposed to think, if either one, when standing alone, would be constitutional, that the last would be regarded as an expression of the will of the Legislature when enacted, and as it could not operate in harmony with the first, would by implication, repeal it.” Reid at 619. It follows then that the Reid court, if it could ignore Alabama’s constitution, would have upheld a ban on concealed carry or open carry, as long as one method was permitted (to be specific, if both methods were banned, it would have upheld the most recent ban and nullified the longer-standing ban).
- State v. Chandler, 5 La. Ann. 489 (1850).
In Chandler, the court explained that a law prohibiting concealed weapons “became absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons. It interfered with no man's right to carry arms (to use its words) ‘in full open view,’ which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.” Id. at 489-90. Thus, open carry was clearly available and considered by the court.
- Nunn v. State, 1 Ga. 243 (1846).
In Nunn, the Supreme Court of Georgia upheld a ban on concealed carry while striking down a ban on open carry.
- Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013).
Peterson is a recent 10th Circuit case that originated in Colorado. Open carry is generally legal in Colorado, and while Denver does uniquely restrict most forms of open carry, Peterson “repeatedly expressed” that he was “not challenging the Denver ordinance,” so the court did not consider it. Id. at 1208. Open carry is also legal in every other state within the 10th Circuit’s jurisdiction (New Mexico, Oklahoma, Kansas, Wyoming, and Utah).
- State v. Mitchell, 3 Blackf. 229 (1833).
Mitchell is literally a single sentence opinion that simply upheld a ban on concealed weapons, but the Supreme Court of Alabama in Reid and the Supreme Court of Georgia in Nunn both remarked about how similar the fact patterns in Reid and Mitchell were, and in Reid open carry was available, so it seems reasonable to assume that open carry likewise remained available in Indiana. Most certainly there is no indication whatever from any source that the bearing of arms was entirely prohibited in Mitchell.
Secondly, you contend that, “According to the minority, a fundamental, enumerated right can be banned in favor of something which it concedes is not a right (concealed carry) because (some) people don't like the right.”
I believe your interpretations of the dissents are also misguided. No dissenting judge “concede[d]” that the carrying of concealed weapons is “not a right.”
Judge Callahan’s dissent argued that citizens have a right to carry firearms in public, and that while states may prescribe the manner in which that right is exercised, states cannot prohibit that right altogether (meaning that both concealed carry and open carry are protected to varying degrees depending on the circumstances, as together they make up the right to bear arms). In Judge Callahan’s words, “States may choose between different manners of bearing arms for self-defense so long as the right to bear arms for self-defense is accommodated.” Slip op. 63.
Judge Silverman’s dissent argued that “the challenged laws are unconstitutional under the Second Amendment because they do not survive any form of heightened scrutiny analysis”—clearly indicating his belief that concealed carry is protected by the Second Amendment. Slip op. 85.
And finally, Judge Smith, who joined Judge Callahan’s dissent, wrote separately to argue that the case should have been remanded to the district court to better develop the record and determine the appropriate level of scrutiny.