There are only three states in the U.S that have an outright ban on openly carrying firearms; California, Illinois, and (oddly enough) Florida. Sixteen others require a permit to openly carry, though in most states a concealed carry license also covers openly carried firearms.
Rhode Island issues concealed carry-only permits through local licensing authorities, but anyone wanting to bear arms openly must apply for an “unrestricted” carry permit through the state Attorney General’s office, and applicants must show a “need” to open carry in order to obtain their Second Amendment permission slip.
That flies in the face of what the Supreme Court held in Bruen: proper-cause requirements violate the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.
Despite that plain language, a federal judge has upheld Rhode Island’s “may issue” scheme by declaring that so long as the state has a “shall issue” permitting system for concealed carry it can impose whatever restrictions it wants on openly carried arms.
“Plaintiffs’ argument to the contrary is foreclosed by Bruen itself,” the judge ruled. “There, the Supreme Court concluded that ‘[t]he historical evidence from antebellum America does not demonstrate that the manner of public carry was subject to reasonable regulation.’”
Additionally, Smith found that the attorney general’s “application of the act’s permitting structure to plaintiffs is relevantly similar to historical regulations, and thus consistent with the Second Amendment.”
Quoting further from the opinion:
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.
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.
That statement by the Supreme Court makes it extraordinarily difficult to challenge both open carry bans like the ones in Florida, Illinois, and California as well as “may issue” laws in states like Rhode Island.
It also opens the door for anti-gun lawmakers to play games with our Second Amendment rights. What would happen if a state like California decided to allow open carry with a permit but ban concealed firearms? Some people would adapt, but my guess is that the number of folks exercising their right to bear arms would plummet, given that most of us carrying for self-defense don’t want to advertise that fact.
I don’t know how likely it is for anti-gun Democrats in blue states to take that extreme step, but under Judge William Smith’s reasoning it would be perfectly acceptable and constitutional, even if had a chilling effect on the number of people exercising their right to bear arms. The Supreme Court needs to issue a correction at the first opportunity to make it clear that “may issue” laws are unconstitutional in every circumstance, even when the exist alongside a “shall issue” system for one form of carry.
Editor’s Note: Activist judges are doing everything they can to hamstring our Second Amendment rights.
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