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Will 10th's Concealed Carry Ruling, Circuit Split, Lead to SCOTUS?

By William Peacock, Esq. | Last updated on

The Tenth Circuit’s ruling in Peterson v. Martinez that the right to bear arms does not extend to concealed carry places it squarely in conflict with the Seventh Circuit, who released an update to their own concealed carry decision last week as well.

As a national trend, concealed carry permits have gone from heavily restricted to extremely permissive (Illinois was the last “no issue” state standing until the 7th Circuit intervened). As the number of states with loosening laws have exploded, and moderate “may issue” laws have been challenged in New York and Maryland, with varying results, the Circuit Courts themselves have come to conflicting conclusions.

It’s all pointing to one thing: Supreme Court Showdown.

Right to Carry Map Over Time

The Colorado Case

Last week, the Tenth Circuit ruled that a Washington man, Gray Peterson, who holds concealed carry permits in three states, did not have his Second Amendment or Privileges and Immunities clause rights violated by Colorado's refusal to allow him to carry a concealed weapon. Colorado issues permits to residents only and will recognize permits from states that practice reciprocity with Colorado, so long as the holder is a resident of the reciprocal state. Peterson held a Florida permit (as well as Utah and Washington permits) which has reciprocity with Colorado, but alas, he is not a Florida resident.

Privileges and Immunities, Right to Travel

The Privileges and Immunities Clause "establishes a norm of comity" among the states. However, this does not mean that states have to give full faith and credit to every license, permit, etc. from every other state. In Friedman, the Supreme Court stated "it is only with respect to those 'privileges' and 'immunities' bearing on the vitality of the Nation as a single entity that a State must accord residents and nonresidents equal treatment." The Tenth cites instances where the clause does apply, such as the right to engage in business across state lines, access courts, and serve in the National Guard. They then ruled that because the concealed carrying of firearms has been prohibited for much of our history, it fails the Friedman test.

The court does admit, in a footnote, that under a famed SCOTUS concurrence by Justice Thomas in McDonald, the clause might protect the right to keep and bear arms. However, that begs the question of whether the right to bear arms applies to concealed carry.

Right to Bear Concealed Arms

In perhaps the shakiest of all decisions to hold that concealed carry is not part of the Second Amendment's guarantees, the Tenth Circuit cited dicta from an 1897 case about deserting seamen. They then reminded us that dicta from SCOTUS is binding, particularly when recent, (though they admitted that it's been awhile since 1897). Never mind the notion that historical practices don't always coincide with proper interpretations of constitutional rights (see slavery, Japanese internment camps, etc.) and the trend towards a broader view of gun rights (see McDonald, Heller, etc.).

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