Restricting Open Carry of Guns Constitutional if Concealed Carry Allowed
From Friday’s decision by Judge William Smith (D.R.I.) in O’Neil v. Neronha:
[W]hile Bruen held that the Second Amendment’s plain text protects “carrying handguns publicly for self-defense,” it did not go so far as to declare that the text requires open carry. See Baird v. Bonta, 709 F. Supp. 3d 1091, 1125 (E.D. Cal. 2023).
But the Court need not dive too deeply into this question because, even assuming the text covers open carry, Defendants’ application of the Firearms Act to regulate Plaintiffs’ manner of public carry is within the Nation’s historical tradition of regulation…. [In Bruen], the Supreme Court concluded that “[t]he historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation.” And it drew that conclusion, in part, from its finding that historically, “States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly.” The Firearms Act, through its permitting structure, does just this, albeit in reverse: it regulates Plaintiffs’ manner of public carry in that it limits their right to open carry but leaves unaffected their right to concealed carry.
Plaintiffs make much of the fact that the Act’s permitting structure reverses common historical regulations allowing open carry and limiting concealed carry. But the Second Amendment is not “a law trapped in amber.” U.S. v. Rahimi (2024). Per the Supreme Court’s direction in Rahimi, “[a] court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.'” In doing so, the Court concludes that Defendants’ application of the Act’s permitting structure to Plaintiffs is relevantly similar to historical regulations, and thus consistent with the Second Amendment.
{The Court’s decision rests on the binding precedent set by the Supreme Court in Bruen and Rahimi. Thus, the Court need not undertake its own review of historical laws regulating the public carry of firearms.}
For more on this sort of analysis, which focuses on the magnitude of the burden on the constitutional right, see my Implementing the Right to Keep and Bear Arms After Bruen (NYU L. Rev. 2023), pp. 1956-61 (though that article doesn’t discuss the question whether a restriction on open carry is indeed a sufficiently mild burden):
Bruen Leaves Room for Upholding Restrictions that Only Modestly Burden the Right to Bear Arms
Bruen did not foreground the burden threshold for right-to-bear-arms violations the way it stressed the scope inquiry. But the Court did suggest that some arms restrictions would indeed be constitutional on the grounds that they impose only modest burdens. This is particularly clear in footnote nine of the majority’s opinion, which upheld licensing requirements for carrying guns:
Because [forty-three states’ “shall-issue”] licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent “law-abiding, responsible citizens” from exercising their Second Amendment right to public carry. Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.” And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials …. That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.
Of course, licensing requirements do interfere in some measure with the right to carry guns: They impose at least some “wait times” and some “fees.” Nor did the Court suggest that longstanding tradition or history supported such licensing requirements.
Rather, the Court apparently reasoned that a modest burden
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