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.
I think they are all wrong, yes, even SCOTUS. Let me explain why. Let’s start with the Second Amendment. “… the right of the people to keep and bear Arms, shall not be infringed.” Seems pretty clear to me. The amendment doesn’t delineate what, when, where, or how “the people” can “keep and bear arms”. There is an argument about who “the people” includes but I believe it is all legal citizens. Illegal immigrants are not included – seems folks forgot what “illegal” means but that’s a discussion for another time. “Illegal” is the same as “criminal” to me. “…… Read more »
There’s no real question in my mind – especially since I am a Rhode Island resident – that every law-abiding person has a right to purchase, own, and carry a weapon. The Rhode Island Constitution is even more explicit than the federal one: “The right to keep and bear arms shall not be infringed.” That’s the whole text – no militia, no free state, no window dressing. Just a directive to the RI General Assembly to butt out on the issue of guns – they are off-limits to lawmakers. Unfortunately, the Democrat toadies and Bloomberg/Soros bootlickers in the General Assembly… Read more »
In Florida we have permitless concealed carry. I still get the permit because of reciprocity. I do believe that open carry should be a right and I support that. However, I don’t really understand why anyone would prefer to carry openly rather than concealed when in a populous setting. I would prefer to carry openly when in a non-populous setting like fishing, hiking, etc. But if a situation develops like an active shooter in a grocery store, the perp will obviously first go for the citizen whom he sees carrying a firearm. My chances of neutralizing the shooter will be… Read more »
Sadly, Rhode Island’s open carry law(s) are on par with Florida. Or should I say FL’s are on par with RI’s?
I live in the Democratic People’s Republic of Rhode Island and the attorney general, governor and many senators and representatives are, IMHO, communist. In order to obtain a concealed carry permit, a person needs to show a need for carrying. (a notorized letter begging for permission), produce 3 notarized reference letters, quality at a shooting range and do this every 4 years. The state of Connecticut just mails out a renewal notice after first jumping through the hoops and all that’s needed is to sign the form and enclose a check for $70 and a passport photo. The permit is… Read more »
Bruen is supposed to require that any restrictions are what would have been normal back in the days of our early War for Independence. Having studied that period of history carefully and extensively, I can say with certainly that the carrying of arms was normal, and was done in many different ways, depending on circumstances and need. Paul revere, since a young lad, was often tasked with carrying very valuable pieces of silverr his Vaher had made or repaired for customers. I recall one “mission” with which he was tasked, at 16 years of age, where he carried a brace… Read more »
i guess r.i. is a maybe shall issue state. for this “judge” and ag to think in this convoluted way makes me think they are suffering a mental breakdown. no one in their right mind thinks like this. if only their civil and human rights were being abused as much as they are abusing the citizens. seems like there is always the few privileged ones that are above the law, and they always seem to be in government.
They should add Nevada to the permit less open carry map if not already. And veterans and active-duty personnel are free to carry permit less either way.