Standing His Ground: A legal blog on self-defense, gun control, and the Second Amendment
by Robert Leider

The Right to Bear Arms (Openly?) in the Supreme Court:  Did the Bruen Petitioners Err by Seeking Only a New York “Concealed-Carry” License?

Since at least Marbury v. Madison, the Supreme Court has recognized that a litigant may not be able to secure judicial relief if he seeks the wrong remedy. A question about the proper remedy is brewing in New York State Rifle & Pistol Association, Inc. v. BruenBruen involves plaintiffs who have unsuccessfully sought unrestricted licenses to carry handguns.  They have challenged New York’s licensing statute, which requires “proper cause” for a pistol license authorizing the licensee to “have and carry concealed” handguns.  The plaintiffs claim that requiring “proper cause”—currently understood to require proof of individualized special danger—violates the Second Amendment’s right to bear arms.  But some have challenged, based on historical precedent holding that the right to bear arms is the right to carry arms openly, whether the plaintiffs in Bruen have sought the wrong remedy by asking the Court to issue unrestricted concealed carry licenses.  This argument, however, ultimately fails because it relies on the mistaken belief that New York prohibits carry licensees from carrying pistols openly.  As I explain below, a better reading of New York’s licensing laws is that license holders may lawfully carry their handguns in either a concealed or unconcealed manner.  For this reason, the concern that the Bruen plaintiffs have sought the wrong remedy is misplaced.

For the first century after the Founding, most American courts recognized that the right to “bear arms” conferred some right to carry arms openly.  But the courts were almost unanimous that the right did not extend to carrying concealed weapons.  The law was so settled that, by 1897, even the U.S. Supreme Court had no reservations about stating (in dicta) that “the right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons.”  The Court was explaining that all rights have exceptions, and concealed weapons were to the Second Amendment what libels were to the First.

Many lawyers challenging gun control laws try to explain away these cases.  They say that courts actually held that legislatures may limit the manner of bearing arms, but have to make either open or concealed carry available.  And they say that unfavorable judicial comments regarding concealed weapons resulted from a nineteenth-century society that viewed concealed weapons with more suspicion than openly carried arms.  Today, they say, that situation has reversed:  openly carried weapons are presently viewed with more suspicion than concealed weapons. 

The U.S. Court of Appeals for the Ninth Circuit did not accept these arguments.  In Peruta v. County of San Diego, the Ninth Circuit held that concealed weapons have long been singled out as problematic and not within the scope of the right to bear arms.  Peruta bracketed whether the right to bear arms protected carrying weapons openly.  But two years later in Young v. Hawaii, the Ninth Circuit held that no form of public carry fell within the scope of the right to bear arms.  Nineteenth-century precedent strongly suggests that Peruta was correct, but Young was wrongly decided.

In Bruen, the plaintiffs have requested that they be issued full New York carry licenses without having to prove that they face special dangers compared with the community generally.  Carry licenses in New York authorize their holders to “have and carry concealed, without regard to employment or place of possession.”  This leads to the question whether the plaintiffs in Bruen have a “Peruta problem” by asking only for a concealed carry license. 

Some litigants apparently think so.  They have filed a successor case challenging New York’s (supposed) ban on openly carried handguns.  Their lawsuit was recently dismissed by the district court, which held, among other things, that the plaintiffs lacked standing. 

The Supreme Court also may have invited this concern.  The petitioner’s brief asked the Court to decide “[w]hether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”  When the Court granted the certiorari petition, however, it rewrote the question to be:  “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment” (emphasis added). 

What creates this Peruta problem?  Many gun owners believe (and the U.S. Court of Appeals for the Second Circuit stated without analysis) that New York prohibits all carrying of handguns openly.  Their argument goes like this:  (1) New York bans firearm possession without a license; (2) New York only licenses people to “carry concealed”; thus, (3) because a person can only get a license for concealed carry, openly carrying a handgun is prohibited.

I believe that premise (2) is mistaken.  The statutory language that pistol license holders may “have and carry concealed” confers a positive permission to carry concealed handguns.  The language is not a restriction that licensees may only carry their handguns concealed.  Three reasons have led me to this conclusion.

First, New York does not restrict licensees to concealed carry.  All the licensing provision states is that it is unlawful to possess or carry a concealable firearm without a license and that licensees may “have and carry concealed.”  The general ban on carrying, thus, does not apply to a person issued a pistol license.  And there is no provision making it unlawful for a license holder to carry a pistol openly or specifying penalties for such conduct.  Contrast New York law with Florida Statute § 790.053 and Texas Penal Code § 46.035(a) (2001) (prior to recent amendments), both providing for penalties when a person openly carries a firearm. 

Second, New York carry licenses issued to armored car drivers and correctional officers (under New York Penal Law § 400.00(2)(c), (e), respectively) also use the “have and carry concealed” language.  If the standard argument were correct, it would mean that armored car drivers and correctional officers commit crimes when they openly carry their weapons on duty.

Third, it is generally accepted that target shooting and hunting constitute proper cause, at least for a license limited to those activities.  If carry licenses issued for proper cause under subsection (f) did not authorize carrying openly, then it would be unlawful for a person to openly carry a handgun while hunting and target shooting. 

Principles of statutory construction generally try to avoid such strange results.  The better interpretation is that New York law specifically authorizes individuals to carry concealed handguns.  But New York law does not restrict licensees only to concealed carry.  Or to put it more bluntly, New York law allows a person issued a “concealed-carry license” (as the Supreme Court termed it) to carry their handguns either concealed or openly.

This reading of the law does not make the “carry concealed” language superfluous.  During the late 1800s and early 1900s, it was very common for U.S. cities and towns to have ordinances that banned carrying concealed weapons.  Although I have not researched the issue, I suspect that many New York localities had such ordinances.  Further, New York did not expressly preempt local gun laws in 1913 when the licensing statute was passed.  If New York law did not specifically authorize concealed carry, it might have been inferable that current or future local ordinances prohibiting concealed weapons applied to licensees.  By specifically authorizing carry licensees to “carry concealed,” the 1913 licensing statute impliedly preempted any local ordinances to the contrary.

I acknowledge that finding cases directly on point in support of my argument is virtually impossible.  Gun owners likely do not carry their weapons openly because current law grants licensing officials virtually unbridled discretion on issuing and revoking carry licenses.  Licensees reasonably fear that their licenses would be revoked if they try to carry handguns openly outside of hunting and target shooting. 

For Bruen, however, this does not matter.  New York law prohibits possessing or carrying a handgun without a license, so a carry license is required to legally carry a handgun, whether concealed or openly.  And New York law authorizes (but does not require) license holders to carry their pistols concealed, so nothing prevents a carry license holder from carrying a handgun openly.  Because carry licensees are not legally restricted to concealed carry, there is no Peruta problem.  Thus, a holding that New York licensing officials have to issue “concealed carry licenses” for self-defense would properly vindicate the plaintiffs’ right to bear arms, even if the right is understood as encompassing only the right to bear arms openly.

Disclaimers:  This blog post should not be considered legal advice.  Additionally, I filed (with Nelson Lund and the Buckeye Firearms Association) an amicus brief in Bruen in support of the petitioners.  You can find that brief here.

2 responses to “The Right to Bear Arms (Openly?) in the Supreme Court:  Did the Bruen Petitioners Err by Seeking Only a New York “Concealed-Carry” License?”

  1. I thought, perhaps in error, that nowadays NYS prohibited open carry even with a permit. When I was a NYS resident, my permit just said “permit to carry handgun” and open or concealed carry were both options.

    Liked by 1 person

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