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Justice Scalia on Concealed Carry Prohibitions

Justice Antonin Scalia wrote the majority decision in District of Columbia v. Heller
Justice Antonin Scalia wrote the majority decision in District of Columbia v. Heller

Justice Scalia wrote the majority decision in District of Columbia v. Heller (2008)

On the day the decision was released, Justice Scalia spoke for 16 minutes from the US Supreme Court bench explaining the decision. The following is a brief excerpt in which he explains that the Second Amendment is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” First among these exceptions is that prohibitions on concealed carry are Constitutional to which the four justices who dissented were in complete agreement on this point. All 9 justices were unanimous in that concealed carry is not a right.

The US Supreme Court has already denied a concealed carry cert petition from the 9th circuit this term, just as it has denied the concealed carry cert petitions these past ten years from every court in this nation, including those like the NRA’s cert petition in Peruta v. San Diego which falsely claimed to be a lawsuit about “carrying” despite arguing in the lower courts that states can, should and must ban Open Carry.

The NRA, through its official state organization in New Jersey, has filed another concealed carry cert petition out of the 3rd circuit. This time the NRA does not argue in its petition that the plaintiffs seek to carry in some manner (openly or concealed). The NRA makes it perfectly clear in its latest cert petition that they seek concealed carry and that states can ban Open Carry in favor of concealed carry even though New Jersey handgun Carry licenses do not require one to carry his handgun concealed.

There is No Fool Like an NRA Fool

Likewise, Massachusetts handgun carry licenses do not require one to carry his handgun concealed. The same NRA lawyer will be filing a cert petition out of that state on, appropriately, April Fools Day. The NRA’s official state organization is also a plaintiff in that case out of the 1st circuit court of appeals.

The NRA has two additional concealed carry cases out of the 2nd circuit (New York) and 4th circuit (Maryland) Federal courts of appeal which will likely land in the US Supreme Court inbox before this year is out.

If this all sounds familiar it should. The Second Amendment Foundation (SAF) had filed concealed carry cert petitions out of these very same states and circuits, all of the SAF concealed carry cert petitions were denied.

What has changed to make the NRA think it will win where the SAF has lost? Justice Kavanaugh says Concealed Carry Is Not A Right. Justice Kavanaugh replaced Justice Kennedy who was reportedly responsible for Section III of the Heller decision which opened by saying that concealed carry is not a right. Replacing one Justice who doesn’t believe that concealed carry is a right with another justice who has repeatedly said that concealed carry is not a right does not improve the odds of a cert petition which seeks concealed carry, either directly or indirectly, from being granted.

The NRA’s Peruta v. San Diego cert petition got just two of the four votes it needed to be granted and it only got those two votes because Justices Thomas and Gorsuch were willing to give the NRA the benefit of the doubt when it claimed in its cert petition that their case was not a concealed carry case. Justice Thomas was part of the five-justice majority in District of Columbia v. Heller which held that concealed carry is not a right. Likewise, Justice Thomas wrote a concurrence in McDonald v. City of Chicago which applied the Second Amendment right as it was defined in the Heller decision to all state and local governments.

The Membership of the NRA, SAF, and Other So-Called Gun-Rights Groups is Functionally Illiterate

In the decade following the Heller decision, the so-called gun-rights groups have filed lawsuits in which they claim that when Justice Scalia wrote that Open Carry is the right guaranteed by the Constitution and that concealed carry is not a right, what he actually said is that Open Carry can be banned in favor of concealed carry.

The very first paragraph of Section III of District of Columbia v. Heller at pages 2816-2817 says:

Justice Scalia on Concealed Carry Prohibitions.
Antonin Scalia, Supreme Court justice.

“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. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. 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. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing 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.”

In the above paragraph are two citations: State v. Chandler and Nunn v. State. Both of those decisions held that Open Carry is the right guaranteed by the Constitution and held that concealed carry is not a right because concealed carry is vile and cowardly. These two cases, according to the US Supreme Court, perfectly captures the meaning of the operative clause of the Second Amendment which is “the right of the people to keep and bear Arms, shall not be infringed.”

No Federal court has ever held that Open Carry can be banned in favor of concealed carry

As Justice Scalia mentioned in this audio excerpt, the Supreme Court had already said (back in 1897) that prohibitions on concealed carry are Constitutional. The Heller decision merely reaffirmed what the Supreme Court had said about concealed carry more than a century earlier and what state courts have been saying about the Second Amendment and their state analogues not protecting concealed carry for over 200 years.

The most common, and most moronic, claim is that one has a right to carry concealed weapons in public because the Second Amendment doesn’t say that one can’t carry concealed weapons.

There is no right enumerated in the Bill of Rights which works that way. If one were to claim that he has a First Amendment right to engage in human sacrifice because the First Amendment doesn’t say that he can’t then he would be regarded as a fool by rational men and women. This applies equally to those fools who claim the Second Amendment is likewise unrestricted.