Fredy Riehl, AmmoLand’s Editor-in-Chief, already covered U.S. District Court Judge William E.. Smith’s ruling in O’Neill v. Neronha. Judge Smith employed a bit of judicial jujitsu to uphold Rhode Island’s oddball open carry law.
Rhode Island is a “shall-issue” state for concealed handgun carry permits. However, a person wanting to open carry must get a second “unlimited” permit. Those are issued at the sole discretion of the state attorney-general. Both the attorney general and the federal judge were comfortable with calling open carry a privilege, saying the Second Amendment’s right to bear arms was satisfied by the regular permit.
In his opinion, Judge Smith wrote: “The parties disagree as to the threshold question of whether the text of the Second Amendment covers open public carry of firearms. And while 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.”
This is pure sophistry: It’s exactly like the gun-grabbers’ nonsense claims the Second Amendment doesn’t extend to ammunition or to the acquisition of arms.
Smith referred to regulations on concealed carry imposed by a number of states in the antebellum years.* Unfortunately for both the judge and the attorney general, both judicial and legislative history from the period indicate a far better understanding of the concept of a right and the limitations of legislative infringements.
As this graphic below shows, the vast majority of states have permitless open carry. It was determined by a number of courts and states in the years before the Civil War that a state had to allow citizens a way to exercise their right to carry arms. If a state wished to regulate concealed carry, it couldn’t regulate open carry.
Rhode Island does not have a permitless option. It considers its “shall-issue” concealed carry permit satisfies the requirements of the Second Amendment and believes it can regulate open carry any way it wishes. Judge Smith even cited Bruen.
While the Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen was a major win for gun rights, Justice Thomas’ opinion had a few “gotchas”. The biggest one is Footnote 9, which begins with:
“To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which “a general desire for self-defense is sufficient to obtain a [permit].” Because these 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.”
More than one lower court has interpreted this to mean any permit required by a state passes constitutional muster. This includes carry permits, purchase permits, ownership permits, and all the other infringements of Americans’ civil rights.
The plaintiffs in O’Neill v. Neronha have already said they intend to appeal the district court’s ruling. However, the First Circuit is not exactly gun-friendly, so it’s likely to be a tough battle.
*For more insight into the period, read Judge Diarmuid O’Scannnlain’s majority opinion in Young v. Hawaii from July 2018 and/or Jonathan Meltzer’s “Open Carry for All: Heller and Our Nineteenth-Century Second Amendment” from the March 2014 Yale Law Journal.
Federal Judge Claims Open Carry Is Not a Constitutional Right in Rhode Island
About Bill Cawthon
Bill Cawthon first became a gun owner 55 years ago. He has been an active advocate for Americans’ civil liberties for more than a decade. He is the information director for the Second Amendment Society of Texas.
