Posts Tagged ‘Concealed Carry’

In a closely watched case, the U.S. Court of Appeals for the Fourth Circuit issued a significant decision on March 21, in which it affirmed the ability of state law enforcement to limit the carrying of guns in public places. Reversing the decision of a federal district court in Maryland, the circuit court held that a requirement under Maryland law – that an individual demonstrate a “good and substantial reason” in order to qualify for a permit to carry a handgun in public – does not violate the Second Amendment.

Notably, the Fourth Circuit rebuked the district court for making a “trailblazing pronouncement that the Second Amendment right to keep and bear arms for the purpose of self-defense extends outside the home” and it advised courts that they should await direction from the U.S. Supreme Court before determining whether or to what extent the Second Amendment might protect the possession of firearms in public.

The decision confirms that reasonable restrictions on carrying of handguns in public are constitutional, even if they strictly limit the number of individuals who may carry a handgun. As the Fourth Circuit explained, “The State has clearly demonstrated that the good-and-substantial-reason requirement advances the objectives of protecting public safety and preventing crime because it reduces the number of handguns carried in public. That is, limiting the public carry of handguns protects citizens and inhibits crime.”

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Image Credit: wallyg on Flickr

Last month, the U.S. Court of Appeals for the Tenth Circuit confirmed that a law requiring that someone be a Colorado resident in order to qualify for a license to carry a concealed weapon in the state remains consistent with the Second Amendment.

As discussed in this important decision, the requirement to prove state residency defined by Colorado law is an essential component of firearms licensing. Many of the state and local records that would disqualify someone from possessing or carrying a firearm — such as those reflecting a criminal conviction or mental health adjudication — are not transmitted between states, making the proof of state residency pivotal to keeping weapons out of the hands of dangerous people.

Although the court could have only addressed Colorado’s residency requirement, the Tenth Circuit held more broadly that “the carrying of concealed weapons is not protected by the Second Amendment,” thus rejecting the plaintiff’s claim. This decision is particularly noteworthy because Second Amendment challenges to concealed carry licensing laws are currently pending in several other federal appellate courts around the country, setting an important precedent for other courts to uphold existing licensing laws.

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(Update: The Ninth Circuit has posted audio of the arguments in Peruta v. County of San Diego, Richards v. Prieto, and Baker v. Kealoha.)

This Thursday, December 6th, the Ninth Circuit Court of Appeals in San Francisco will consider an issue of critical importance to the safety of our communities: whether the Second Amendment guarantees the right to carry a concealed, loaded handgun in public places.

Three cases being heard on Thursday morning involve challenges to state laws in California and Hawaii that require an applicant for a concealed carry license to show a legitimate need to carry a weapon.

We’ve been supporting defense counsel with our Second Amendment expertise because we know how important these cases are. Favorable decisions here could reaffirm law enforcement’s ability to protect public safety by limiting the number of people carrying hidden, loaded handguns in California and Hawaii.

The three cases being heard by the Ninth Circuit are Peruta v. County of San Diego (challenging San Diego County’s application of the California law), Richards v. Prieto (challenging Yolo County’s application of the same law), and Baker v. Kealoha (challenging Hawaii’s law).

For more about these cases, read our amicus briefs in Peruta and Richards. If you live in the Bay Area, oral arguments are open to the public, and the Ninth Circuit courthouse is located at 95 7th Street in San Francisco. On Friday, audio and video of the arguments will be available on the Ninth Circuit’s web site.

These cases will undoubtedly have nationwide significance in this emerging area of Second Amendment jurisprudence. The Second Circuit recently upheld New York’s discretionary concealed carry law in a great decision, and similar cases are also pending in the Third and Fourth Circuits.

Brett A. Clark/The Daily Advance

Around the country, courts are confronting a critical question: whether the Second Amendment requires states to issue concealed handgun licenses to virtually anyone who wants one.

This week, the U.S. Court of Appeals for the Second Circuit addressed that question, holding that New York’s requirement that concealed carry applicants show “a special need for self-protection” does not violate the Second Amendment.  In Kachalsky v. Cacace, the court explained that the requirement of a showing of need is substantially related to the government’s important interests in preventing crime and guaranteeing public safety.  The court found that the requirement is consistent with gun regulation that has existed since the nation’s founding, noting, “[t]here is a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety.”  New York has required a showing of need for carrying a concealed weapon for 100 years.

While many states issue a concealed handgun license to virtually anyone who applies, states like California and New York require an applicant to show a legitimate need to carry a gun in public, usually by presenting documentation of a real threat to the applicant’s safety.  Those requirements are now under attack in a number of Second Amendment lawsuits nationwide brought by individuals who have no legitimate need to carry guns in public places.

Thankfully, the courts are standing up for the safety of their citizens and protecting the laws that work to reduce the violence that plagues their communities. For more this trend, read our publication, The Second Amendment Battleground: Victories in the Courts and Why They Matter.

To find out more about this case, read the decision in Kachalsky v. Cacace.

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Case Information:  Pizzo v. City and County of San Francisco, No. 09-cv-04493-CW (N.D. Cal. Filed July 9, 2012)

At Issue:  Challenging California’s concealed carry “good cause” provision.  This lawsuit challenges the “good cause” provision contained in California’s concealed carry statute.  Under California law, an applicant for a concealed carry permit may only receive a permit if he or she has demonstrated good cause to carry a concealed firearm.  Plaintiff argues that this provision violates the Second Amendment to the U.S. Constitution.

Law Center’s Brief:  Our brief, filed in support of California’s discretionary concealed carry law, argues that California’s statutory provisions do not fall within the scope of the Second Amendment as it has been interpreted by the U.S. Supreme Court.

Download a PDF of the Pizzo v. City & County of San Francisco Amicus Brief.

Case information:  Woollard v. Gallagher, No. 12-1437 (4th Cir., Filed June 22, 2012)

At issue:  Challenging Maryland’s open carry law.  Woollard involves an appeal from the District Court for the District of Maryland, which declared Maryland’s concealed carry permit law to be an impermissible infringement on the Second Amendment.  The law required that in order to be granted a permit, the applicant must have “a good and substantial reason.”  The court held that the Second Amendment extended to places outside the home, and applied intermediate scrutiny, finding the law “insufficiently tailored to the State’s interest in public safety and crime prevention.”  The court rejected Plaintiff’s claim that the First Amendment doctrine of prior restraint applied to the law.

Law Center to Prevent Gun Violence’s Brief:  Our brief, filed in support of Maryland’s concealed carry law, argues that the right recognized in District of Columbia v. Heller is limited to the home.  The brief explains that public carry was not understood to be part of the right both before and at the time of the adoption of the Second Amendment.  The law at issue is “presumptively lawful” according to Heller because it is part of the longstanding tradition of similar restrictions, including ones upheld by 19th century courts.  The brief argues that the District Court erred in expanding the right beyond Heller at odds with the judicial restraint endorsed by the 4th Circuit and because similar restrictions have been held constitutional post-Heller.

Alternatively, the brief argues that even if the right extends to carrying a handgun in public the law would easily be upheld under intermediate scrutiny.  Intermediate scrutiny only requires a reasonable fit between a regulation and a substantial government interest.  Because the law allows those who demonstrate a need to carry a weapon in public to do so, it fits reasonably between the right and public safety.  Finally, the brief argues that the prior restraint doctrine does not apply because the Second Amendment affords a private right, rather than the public right under the First Amendment, and because laws like Maryland’s statute are presumptively lawful, while those infringing on the First Amendment are presumptively invalid.

Pending Legislation Worries Restaurant, Bar Owners
Stephanie Carroll Carson, The Roanoke-Chowan News-Herald, June 20, 2012

North Carolina is considering legislation that would allow persons with state concealed-carry permits to bring their handguns into restaurants and bars.  Business owners and the general public are concerned about the public safety implications of the proposed law.

As courts across the country hear Second Amendment challenges against important state gun laws, LCPGV is weighing in, turning our legal expertise into a series of amicus curiae (“friend of the court”) briefs filed in several significant cases.

Three of these cases — Moore v. Madigan and Shepard v. Madigan in the U.S. Court of Appeals for the Seventh Circuit, and People v. Aguilar in the Illinois Supreme Court — involve Second Amendment challenges to Illinois statutes that prohibit the carrying of firearms (either openly or concealed) in public places. Illinois is the only state the continues to prohibit both open and concealed carry. In all three cases, the LCPGV briefs argue that: 1) carrying firearms outside the home for self-defense is not within the scope of the Second Amendment; and 2) even if possessing firearms in public is considered within the scope of Second Amendment protection, Illinois’ ban on carrying guns in public is constitutional.

We made similar arguments in the U.S. Court of Appeals for the First Circuit in Hightower v. City of Boston. The Hightower case involves a Second Amendment challenge to Massachusetts’ firearm licensing law, which enables law enforcement to deny an application to carry a concealed weapon if the applicant fails to demonstrate he or she is a person suitable to own or possess such firearms. Our Hightower brief argues that the Second Amendment does not apply, and that even if it did, the “suitable person” standard easily survives scrutiny.

Photo by Jonathan Gibby/Getty Images

On April 14, 2012, Arizona Governor Janice Brewer vetoed a bill, for the second year in a row, that would have weakened restrictions on carrying a loaded firearm in public buildings and on public property.  Minnesota Governor Mark Dayton vetoed a bill on March 5, 2012 that would have created reciprocity with concealed weapons permits from all other states and expanded current stand your ground provisions outside of the home. In South Dakota on March 19, 2012, South Dakota Governor Dennis Daugaard vetoed a bill that would have allowed the carrying of concealed weapons without a permit.

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Sweeping legislation introduced in West Virginia this year would have allowed concealed carry without a permit almost everywhere in the state. The measure would have also made it a felony for a local government or university official to regulate firearms and would have provided prison time for those found to violate the restriction. In addition, a public agency or official found to have maintained a list of gun owners’ names could have be fined up to five million dollars.  The bill died when legislators failed to act on it prior to the adjournment of the session on March 12^th.