It should not come as a surprise to anybody that the Supreme Court turned down an appeal in which the Second Amendment Foundation (SAF) sought an end-run around three Supreme Court decisions which held that concealed carry is not a right.
The Supreme Court held that citizens had 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.”
The case was Woollard v. Gallagher and arose out of a challenge to a Maryland law in the Federal Fourth Circuit Court of Appeals. The Maryland law requires a “good and substantial reason” for a permit to carry a handgun in public. Maryland does not prohibit rifles or shotguns from being openly carried in public.
Permit Requirement Not Challenged
The Second Amendment Foundation did not challenge the permit requirement, which was also likely a fatal flaw in its case. The SAF explicitly disavowed a challenge to the permit requirement and argued that states can ban Open Carry if they want to. The SAF said this despite the Supreme Court also saying in its landmark 2008 decision in District of Columbia v. Heller that “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.” The Supreme Court then cited two 19th Century court cases which held that Open Carry is the right guaranteed by the Constitution.
Cases That Cannot Be Won
Needless to say, the Second Amendment Foundation did not seek to openly carry a handgun and this wasn’t the first time the Supreme Court turned down a concealed carry appeal. The Supreme Court has turned down every concealed carry appeal.
Every Federal Court of Appeals which has had a concealed carry case come before it has said that the Supreme Court meant what it said about concealed carry. Even the 7th Circuit which struck down two laws which banned firearms from being carried in public and which applied to both open and concealed carry said that Illinois can prohibit concealed carry if it wants to as per the Heller decision.
There is one more case, identical to Woollard, which has filed a cert petition with the US Supreme Court to hear its appeal – Drake v. Filko. Drake also challenges the good cause requirement for a permit to carry a handgun which, like Woollard, would entitle one to carry a concealed handgun in public. The Second Amendment Foundation does not challenge the permit requirement nor do they seek to carry a handgun openly. The deadline for filing the petition is in late November. It too will be denied.
Last Circuit Remaining
That leaves the 9th Circuit Court of Appeals as the last circuit to decide whether or not the Supreme Court really meant what it said about concealed carry. Three cases have already been argued and submitted for a decision (four if you count a last minute Ave Maria case by the NRA).
These cases, one of which was brought by the Second Amendment Foundation in conjunction with the Calguns Foundation, all make the same argument that states can ban Open Carry and having done so, must now issue permits to carry concealed handguns.
The National Rifle Association through its state organization the California Rifle and Pistol Association, asked the 9th Circuit to stay the appeal of the denial of the preliminary injunction against California’s Open Carry bans until three concealed carry cases which have already been argued and submitted have been decided. The Clerk for the 9th Circuit Court of Appeals took it upon herself to issue the stay despite the opposition by both parties in Nichols v. Brown to the NRA motion to stay the Open Carry appeal.
Mr. Nichols has said he will file a motion to lift the stay after he files his motion for summary judgment in the district court which is due on November 13th.
Last Case Standing
It would be foolish to expect that the 9th Circuit Court of Appeals is going to issue a decision which holds that there is a right to a concealed carry permit when every other Federal Court of Appeals has held that there is no such right.
It has been over ten months since the three concealed carry cases were argued and taken under submission for a decision. When their appeal is denied, that will leave the Nichols v. Brown Open Carry case as the last one standing.