Last week in Peruta v. San Diego, the en banc Ninth Circuit held that law prohibiting concealed carrying of firearms do not violate the Second Amendment (as incorporated by the Fourteenth Amendment). At Volokh Conspiracy, David Kopel has an excellent extensive analysis, including these observations:
All 11 judges agreed that since the 1840s, American courts have interpreted the Second Amendment as allowing laws against the concealed carrying of arms. Heller itself said so, with approval. The majority opinion marshaled much precedent and scholarship in support of this point. Among the many sources cited was my article “The Second Amendment in the Nineteenth Century,” 1998 BYU Law Review 1359.
As the majority accurately stated, New Jersey was first to enact a ban on concealed carry, in 1686. Four centuries later, in 1966, New Jersey prohibited open carry. The enormous temporal gap illustrates the difference between concealed carry and open carry throughout most of American history.
No colony followed New Jersey. Nor did any state, until about three decades after the Second Amendment was ratified. The concealed carry ban in the new state of Kentucky was soon ruled unconstitutional in Bliss v. Commonwealth (Ky. 1822). But as the Peruta majority accurately explicates, from 1849 onward, the rule was that concealed carry could be prohibited or restricted. …
The majority concluded the historical litany, “Finally, and perhaps most importantly, in Robertson v. Baldwin, 165 U.S. 275 (1897), the United States Supreme Court made clear that it, too, understood the Second Amendment as not protecting the right to carry a concealed weapon.” That case, with involved a merchant seaman and the 13th Amendment, said that all of the Bill of Rights, “from time immemorial,” had “been subject to certain well-recognized exceptions, arising from the necessities of the case.” For example, “the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons.”
As he further explains, the key difference between the majority and the four-judge dissent is whether to take into account the fact that California also bans open carry of firearms (so that, if there is no right to concealed carry, there is no ability to carry at all):
According to the dissenters, the Second Amendment expressly guarantees the right to bear arms; legislatures may regulate but not prohibit the right. So in the 19th-century cases, the legislature could choose to ban concealed carry while not even requiring a permit for open carry. The dissenters wrote that today, legislatures ought to allowed to reverse that preference: to restrict open carry, while allowing concealed carry under a fair and reasonable licensing system. (Citing Eugene Volokh, “Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and A Research Agenda,” 56 UCLA L. Rev. 1443 (2009).)
One reason to prefer concealed carry today might be to avoid the waste of police resources caused by people who have an anxiety disorder about guns and who call 911 because they see someone lawfully carrying openly. The medical term for anxiety disorders about firearms is “hoplophobia.” Ninan & Dunlop, Contemporary Diagnosis and Management of Anxiety Disorders (2006). Of course there are many people who dislike guns, spiders, snakes, etc., without the dislike rising to the level of a phobia.
The logic of the majority opinion would eventually force California to broadly allow open carry, once a case squarely forces the 9th Circuit to decide whether “the right to keep and bear arms” includes the right to bear arms in public places. Although the majority was agnostic on this unaddressed issue, the textual, historical and precedential basis for recognizing a right to bear arms is overwhelming; the only significant cases that hold to the contrary are cases that asserted that no one (or only National Guard members) have arms rights at all. The holding of Peruta does not foreclose a correct result about open carry in a future decision.
So in conclusion:
The dissent respected the Supreme Court’s Heller precedent. While regulation might be the subject of pro/con argument, prohibition of the right to keep and bear arms is categorically void. Although the Heller parties and amici had submitted much pro/con social science (as ably summarized in Justice Breyer’s dissent), the court was not interested. A categorical ban on the exercise of an express constitutional right is necessarily void. If a textual right is considered harmful today, the text should be changed, by the amendment process. Judges should not make their own “assessments” of the social value of an express constitutional right, even a controversial one, such as the right to bear arms.
Posted at 6:58 AM