The Second Amendment preserves "the right of the people to keep and bear arms," which means carrying them. It says that right "shall not be infringed." It all seems pretty clear-cut, but in Rhode Island, openly carrying a firearm requires a permit that they might not even get.
And a judge has just ruled that the requirement is constitutional.
In and of itself, requiring a permit isn't the biggest problem. The decision in NYSRP v. Bruen made it clear that permitting requirements for concealed carry are fine, but "may issue" permitting wasn't. The idea that you have to justify your need to exercise a constitutionally protected right, though, wasn't.
Yet Rhode Island has a may-issue permitting scheme in place for open carry, and at least one federal judge thinks that's just fine.
A federal judge tossed a challenge to Rhode Island’s gun permitting scheme, finding that the state’s requirements for open carry permits do not violate the Second Amendment or due process.
U.S. District Judge William E. Smith dismissed a lawsuit brought by firearm rights activists — including Michael O’Neill, a lobbyist for the Rhode Island 2nd Amendment Coalition — who claimed that requiring gun toters to show “need” to open carry breached their constitutional rights.
Rhode Island law requires municipalities to issue statewide concealed carry permits to any applicants meeting certain criteria. The state attorney general’s office can also issue discretionary permits allowing for both concealed and open carry, but only “upon a proper showing of need.”
That’s the requirement with which O’Neill and his fellow plaintiffs took issue, arguing that it is arbitrary and contrary to their right to bear arms.
Smith, a George W. Bush appointee, disagreed.
“Under Rhode Island law, permits of this nature are a privilege and there is no constitutionally protected liberty interest in obtaining one,” the judge said in a 15-page ruling issued Aug. 1.
Though the attorney general reserves the right to refuse a concealed carry license even if an applicant demonstrates “a proper showing of need,” Smith ruled that this discretion is not unlimited.
He cites the attorney general’s own policy guidance, which states that the office has minimum procedural requirements it needs to hit to reject an application. A rejected applicant also gets clued in on the evidence and rationale for their denial, the judge acknowledged.
Of course, citing policy guidance as a sufficient reason to decide that the permitting requirements aren't onerous is absolutely idiotic. Those can change at any time. This isn't about what one attorney general says, but what the legislature has passed and what the governor signed.
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Moreover, while permits of this nature are considered a privilege, that's kind of the problem. There actually is a constitutionally protected liberty interest here, namely that people have a right to bear arms that the Founding Fathers said should not be infringed upon. Saying someone can't carry openly, though, is an infringement in that liberty.
Then we have the Bruen decision, which found that there needed to be a historical analog for any gun control law to be considered constitutional.
Smith argues that Bruen doesn't apply because it didn't explicitly say open carry had to be allowed, but why would it? The case itself wasn't about open carry, but it did lay down guidance that should be followed in future rulings.
It doesn't look like Smith did anything of the sort.
Of course, this is likely to result in an appeal, and then the circuit courts will take a swing at it. Then, we're potentially looking at the Supreme Court handling it, which should provide Smith with a swift kick in the posterior for being an idiot.
Hopefully.
