The Second Amendment and the Concealed Carry Problem

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The leadership of the so called gun-rights groups and many of their supporters do not like Open Carry which is the Second Amendment right to openly carry firearms in public for the purpose of self-defense.

The so called gun-rights groups have brought, and lost, lawsuits in nearly every Federal Circuit seeking to compel states to issue concealed carry permits. Their arguments have ranged from there is a right to carry weapons concealed under the Second Amendment (contrary to US Supreme Court and state court decisions saying there is no right) to the illogical (contradictory) claim that there is no right to carry firearms in public, concealed or openly, therefore they are entitled to concealed carry permits! Sadly, Logic 101 is not a prerequisite for graduating from law school. It is not even part of any law school curriculum.

The Second Amendment means what the people who enacted the Second Amendment thought it meant in 1791 and, thanks to an 1833 US Supreme Court decision which held that the Bill of Rights does not apply to the states, the Second Amendment means what the people who voted for the Fourteenth Amendment thought it meant in 1868 when evaluating the constitutionality of state gun laws.

The leadership of the so called gun-rights groups and their lawyers seem to have forgotten that the men who wrote and voted to enact the Second Amendment were born Englishman and had grown up as Englishmen as were their fathers and their fathers before them. When it came to the carrying of arms for the purpose of self-defense against other persons, the former colonies, then independent states, and now United States, governed themselves under English common law and English statutory law when the Second Amendment was enacted.

So what did the people who wrote and enacted the Second Amendment mean by the right to “bear arms”?

For the answer to that question as it applies to concealed carry, we need to turn the clock back to 1603.

In 1603, England Had a Concealed Carry Problem

Under English Common Law, killing someone typically resulted in a conviction for either murder or manslaughter. The English Parliament thought that people who used concealed weapons to kill others were getting away with murder, as it were, when charged with the common law crime of murder. Far too often these killers would get off with manslaughter which entailed a lesser punishment than execution.

And so the English Parliament enacted the “Statute of Stabbing” (1 Jac 1 c 8 – English citation) in 1603 because:

“The [statute] was enacted at a critical period, and intended to remedy an immediate evil. It is said to have been directed at a number of persons, who adopted a method of deadly revenge by wearing short daggers under their clothes, which they prepared to use on slight provocations, and those frequently sought for by themselves. Its particular object is thus stated in the preamble [of the statute], which may serve to direct us to its construction [intent of the statute]; “To the end, that stabbing and killing men on the sudden done and committed by many inhumane and wicked persons, in the time of their rage, drunkenness, hidden displeasure, or other passion of mind, may henceforth be restrained through fear of due punishment [death penalty] to be inflicted on such cruel and bloody malefactors, who heretofore have been emboldened by the benefit of clergy [lesser punishment],” after which it proceeds to enact, “that every person who shall stab or thrust any person that hath not then any weapon drawn, or that hath not then any weapon drawn, or that hath not then first stricken the party which shall so stab or thrust, so that the person so stabbed or thrust shall therefore die within the space of six months then next following, although it cannot be proved that the same was done of malice aforethought, yet the party so offending shall be excluded from the benefit of clergy and suffer death as in the case of willful murder.”

The English Common Law defenses which had heretofore allowed persons who used concealed weapons to kill an opponent and escape the gallows was removed by an act of Parliament including the defense that one did not intend to kill his opponent.

The statute prohibiting the use of concealed weapons was not limited to stabbing weapons nor was it limited to weapons concealed upon one’s person. The statue extended to firearms and weapons concealed about a person.

Crucially, to which the proponents of concealed carry should take note, it was murder to use a concealed weapon to kill one’s opponent even if one were engaged in an otherwise fair fight and even if it was one’s opponent who “started the fight.”

Yes, you could carry a weapon concealed but short of being the victim of a surprise attack where your attacker had drawn his weapon and advanced on you thereby giving you no opportunity to arm yourself or to retreat, if you used a concealed weapon to kill your opponent then you were guilty of murder.

If I had a dollar for every person on the internet who said there is a Second Amendment right to concealed carry and he prefers concealed carry because it gives him a secret/tactical advantage, I would own a tropical island.

Given that the Framers of the Second Amendment, and those who voted for its enactment, believed that the use of a concealed weapon was almost invariably an evil, cowardly act, one would be hard pressed to make the case that they thought there was a right to carry weapons concealed.

Secret Advantages and Unmanly Assassinations

But let us assume, for the sake of argument, that there is a general right to carry a weapon concealed for the purpose of self-defense. When challenging a state concealed carry law it is not what the Second Amendment was understood to mean at the time of enactment in 1791 which determines whether or not a state concealed carry law is constitutional today. What is controlling is what the framers of the Fourteenth Amendment and those who voted to enact the Fourteenth Amendment thought the Second Amendment meant in 1868, when the Fourteenth Amendment was ratified.

In the early 1800s states had begun to enact laws prohibiting the mere carriage of concealed weapons (exempting travelers while actually on a journey). Some had even enacted laws prohibiting the carriage of handguns which were easily concealed (these were struck down by the state courts).

By the time the Fourteenth Amendment had been enacted in 1868, it was universally accepted that there was no right under the Second Amendment to carry weapons concealed and there certainly was no court which held that if Open Carry were banned then states must allow concealed carry.

To the contrary, the landmark US Supreme Court Second Amendment decision in District of Columbia v. Heller cited a 19th century case regarding the “destruction” of the right to bear arms (State v. Reid – 1840) which specifically considered the hypothetical case of Open Carry being banned in preference of concealed carry. The court in Reid held that would still result in the destruction of the right to bear arms because Open Carry and only Open Carry is the Constitutional right.

The Heller court was even more direct in its support of Open Carry and condemnation of concealed carry when it cited two ante-bellum cases which both held that Open Carry is the right guaranteed by the Constitution and that concealed carry was an evil, vile act. The Heller decision said that these two cases (Nunn v. State (1846) and State v. Chandler (1850)) perfectly captured the meaning of the enumerated, Second Amendment right of the individual to keep and bear arms.

“[A] right to carry arms openly: “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.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809

Most damning to the proponents of concealed carry who argue that there is a right under the Second Amendment to carry handguns concealed are the United States Supreme Court decisions which said there is no right to carry concealed weapons under the Second Amendment. The first was in 1897 (Robertson v. Baldwin), the second was District of Columbia v. Heller (2008), the third was McDonald v. City of Chicago (2010) which not only held that the Second Amendment applies to all states and local governments but which explicitly held that it was the Second Amendment right as defined by the Heller decision which is incorporated against the states. Most recently, we have the US Supreme Court decision in Caetano v. Massachusetts which unanimously reversed that state’s high court decision because it conflicted with the Heller decision.

Were any court to conclude that concealed carry is a right under the Second Amendment, never mind that states can ban Open Carry in favor of concealed carry, then that court would be in direct conflict with the Heller decision.

Some argue that they have a right under the Second Amendment to concealed carry because the Second Amendment says they have a right to “bear arms” and makes no mention that concealed carry can be prohibited.

That asinine argument has been repeated ad infinitum by proponents of concealed carry which only proves that there are many people out there who are too stupid to own firearms let alone be allowed to carry them concealed in public.

Here is a simple First Amendment analogy. The First Amendment enumerates a right to a free press, free speech and to religion. No rational man would argue that the First Amendment guarantees the right to print counterfeit currency, to issue death threats or to engage in human sacrifice.

As Justice Scalia stated in his Heller decision:

“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…For example, 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.

Concealed Carry and the Courts Today

Just before this article was published, a district court judge issued a preliminary injunction against the “good reason” requirement by the District for being issued a concealed carry license. As UCLA law professor Eugene Volokh correctly observed, the preliminary injunction will be stayed pending appellate review. That case is Grace v. District of Columbia.

By the way, the District of Columbia appellate courts have already held that concealed carry is not a right under the Second Amendment. That decision stands unless it is overturned by an en banc decision of the DC appellate court or is overturned by the US Supreme Court. Given that the lawyers for the District of Columbia have no reason to inform a three judge panel decision of the court of appeals that they don’t have the authority to decide the case and given that the lawyer for the plaintiffs in Wrenn is not the brightest bulbs in the box…

Every concealed carry case brought either by the so called gun-rights groups or by criminal defendants has lost in the Federal Courts of Appeal and their cert petitions to the US Supreme Court have been denied.

We are currently waiting for a decision in the 9th Circuit Court of Appeals which was heard before an en banc panel of 11 judges eleven months ago. The case is Peruta v. San Diego which seeks to compel the issuance of concealed carry permits. A related case, which also seeks to compel the issuance of concealed carry permits (Richards v. Prieto) was heard before the same en banc panel. For procedural reasons, the en banc decision in Peruta will determine the outcome of the Richards v. Prieto case as well as a dozen or more concealed carry cases currently pending before the 9th Circuit Court of Appeals or en route to an appeal.

The appeal in the Peruta case was filed on December 14, 2010 and here we are, over five years since the appeal was filed, and we still do not have a final decision from the court of appeals.

There was a decision published by a sharply divided three judge panel on February 13, 2014 but that decision was vacated by a majority vote of the 29 active judges who sit on the 9th Circuit Court of Appeals. The sharply divided three judge panel decision was vacated on March 26, 2015.

Many people are under the mistaken belief that it is the vacated three judge panel decision which is being reviewed by the en banc panel. It is not. The en banc panel of eleven judges is reviewing the decision of the district court which was decided on December 10, 2010.

The en banc panel will eventually issue a decision which either affirms the decision of the district court or it will reverse and remand the case back to the district court for further proceedings consistent with the en banc decision. Rarely does an appellate court grant the relief requested by the plaintiffs in a case. It can do so if it wishes and it has happened before but given the procedural posture of this case, win or lose, the case will eventually be remanded back to the district court.

The divided three judge panel decision in Peruta v. San Diego is as dead as the parrot in the classic Monty Python comedy sketch as far as the 9th Circuit Court of Appeals is concerned.

There is another concealed carry case out of the District of Columbia which has not been going very well for the Plaintiffs who seek to compel the issuance of concealed carry permits. You can read more about that case, Wrenn v. District of Columbia here. Given that the Wrenn case has already filed an appeal and the court has issued a decision that the appeal be heard in September, it is doubly likely that the recent decision in Grace v. District of Columbia will be stayed pending a decision in the Wrenn v. District of Columbia appeal.

There is an Open Carry case out of Florida, Norman v. Florida, in which a state of Florida appellate court relied on the now vacated three judge panel decision in Peruta v. San Diego in which the Florida Supreme Court will hear oral arguments on June 8th. Unlike the three judge panel decision in Peruta v. San Diego, the Florida Supreme Court has not vacated the three judge panel decision of the Florida court of appeals. Unlike Peruta, which is a Federal civil case, Norman v. Florida is an appeal of a criminal conviction for openly carrying a handgun in public in violation of Florida state law. The Florida Supreme Court will either affirm the decision of the Florida court of appeals or it will vacate Mr. Norman’s conviction.

If Mr. Norman’s conviction is upheld then his next, and final recourse, is to the United States Supreme Court. Fortunately for Mr. Norman, if he must file a cert petition his petition fully qualifies under US Supreme Court Rule 10 for being granted, unlike any of the concealed carry cases which have preceded him.

California Open Carry Appeal – Nichols v. Brown

Finally, there is my California Open Carry appeal which is stayed because of the Peruta case. My case is a pure Open Carry case. The district court judge held that there is no right to carry a loaded firearm in public, openly or concealed, and there is no right to openly carry a firearm in public, loaded or unloaded. For that matter, he held that the Second Amendment right does not even apply to the curtilage of one’s home.

Many people mistakenly believe that the Peruta v. San Diego decision was vacated because California Attorney General Harris seeks to intervene in the Peruta case. They are mistaken. The en banc court has not yet ruled on her motion to intervene in the case. The relevant petition in the Peruta case is the en banc petition filed by the Amici Curiae California Police Chiefs’ Association and California Peace Officers’ Association which cited my California Open Carry case, Nichols v. Brown, multiple times which in turn linked my case to the Peruta case. Hence the stay of my case even though it has nothing to do with concealed carry.

I suspect that a reason the en banc court is taking so long to issue its decision in Peruta v. San Diego is because the California Solicitor General did something during the en banc oral arguments which absolutely nobody expected him to do.

The California Solicitor General, after hemming and hawing a bit, responded to a direct question by Circuit Judge Bea and conceded that the Second Amendment right to carry a loaded firearm for the purpose of self-defense does indeed extend beyond the curtilage of one’s home. But with a catch. The Second Amendment right is to openly carry a firearm and does not extend to concealed carry, as per the Heller decision said the California Solicitor General.

The en banc panel court’s problem is compounded by the fact that all of the defendants also argued that there is a Second Amendment right to openly carry firearms in public but that the Second Amendment right does not extend to concealed carry, as per the Heller decision.

The only ones arguing in the Peruta and Richards cases that Open Carry can be banned are the Plaintiffs seeking concealed carry permits and their organizational co-plaintiffs and lawyers from the National Rifle Association, the official NRA state organization of the NRA (the California Rifle and Pistol Association), the Second Amendment Foundation and the CalGuns Foundation.

the Second Amendment and the NRA.
nra gun ban

All of the so called gun-rights groups have taken the position that states can ban Open Carry whereas the government defendants have taken the position that states cannot ban Open Carry.

If this sounds like an episode from The Twilight Zone to you, you’re right, it does.

Unfortunately, you will never read or hear about this from the mainstream press. Fortunately, you can listen to the en banc oral arguments at the 9th Circuit Court of Appeals website and here.