In a ruling that avowed exceptions to the Second Amendment, a federal appeals court has upheld a dismissal of a Washington state resident’s suit against Colorado officials for denying him a concealed handgun license.
On February 22 in Peterson v. Martinez, the U.S. Court of Appeals for the Tenth Circuit affirmed a dismissal by District of Colorado Senior Judge Walker Miller of Gray Peterson’s claims against Colorado state officials
Peterson applied for a concealed handgun license in Colorado, but that state’s law bars sheriffs from issuing such licenses to residents of states unless the two states have a reciprocity agreement.
Peterson’ application was denied in July 2009, and he sued in February 2010.
He claimed that Colorado’s concealed handgun licensing rules violate the privileges and immunities clause, the Second Amendment and the 14th Amendment’s due process clause and equal protection clauses.
Colorado Attorney General John Suthers intervened in the case to defend Colorado’s law.
In October 2010, Miller dismissed the case against James Davis, the executive director of the Colorado Department of Public Safety, because sheriffs, not Davis, administer the state’s concealed handgun licensing reciprocity rules.
Then, in March 2011 Miller issued a summary judgment ruling in favor of Alex Martinez, whose title is Denver County’s ex officio sheriff or manager of safety for the city and county of Denver. Miller found that Peterson’s Second Amendment challenge failed due to the "the state’s interest in monitoring a potential licensee’s eligibility for a concealed handgun permit, and the increased difficulty of doing so for out-of-state residents."
Miller rejected Peterson’s right-to-travel claim under the constitution’s privileges and immunities clause and equal protection claim for similar reasons. Peterson appealed.
Judge Carlos Lucero wrote the Tenth Circuit opinion, joined by Judge Harris Hartz and Senior Judge Bobby Baldock. Lucero also filed a separate concurring opinion.
Lucero’s majority opinion granted the state 11th Amendment immunity because "when a state law explicitly empowers one set of officials to enforce its terms, a plaintiff cannot sue a different official absent some evidence that the defendant is connected to the enforcement of the challenged law."
Lucero applied the Supreme Court’s and its own case law to analyze the claims against Martinez.
"There can be little doubt that bans on the concealed carrying of firearms are longstanding," Lucero wrote, adding, "the concealed carrying of firearms falls outside the scope of the Second Amendment’s guarantee."
Lucero observed that, in the court’s Second Amendment analysis, "Our task is complicated… by the somewhat unusual posture of Peterson’s claim. Peterson argues that strict scrutiny is appropriate because he is "completely disarmed" while in Denver. That alleged complete disarmament results from the confluence of two enactments: the state statute that requires [concealed handgun license] applicants to be legal residents of Colorado…and the Denver ordinance that requires a [concealed handgun license] for most forms of open carry." He noted, that "Peterson has repeatedly expressed… that he is not challenging the Denver ordinance… [H]ad Peterson challenged the Denver ordinance, he may have obtained a ruling that allows him to carry a firearm openly while maintaining the state’s restrictions on concealed carry.
Lucero also rejected Peterson’s privileges and immunities claim: "Given that the concealed carrying of firearms has not been recognized as a right, and the fact that concealed carry was prohibited for resident and non-resident alike for much of our history, we cannot declare this activity ‘sufficiently basic to the livelihood of the Nation [as defined by Supreme Court case law].’ "
In his concurrence, Lucero detailed an alternative basis for affirmance. He agreed with Miller that Colorado’s residency requirement for a concealed handgun license is substantially related to its key government objective of determining whether someone is qualified to hold such a license.
Peterson’s lawyer, John Monroe, a solo practitioner in Roswell, Ga., said he’s disappointed with the opinion, mainly because the court focused on whether Peterson has a constitutional right to carry a concealed weapon.
"We never asserted that Gray had such a right, and in fact we said in our pleadings that Gray would carry in whatever manner he would be allowed, but that he would prefer to carry openly," Monroe said.
Monroe added that a ruling depriving Peterson of a license means he cannot carry weapons, openly or concealed.
Matthew Grove, an assistant attorney general in the Colorado Department of Law, argued for Suthers and the head of the Colorado Department of Public Safety. He referred questions to Carolyn Tyler, a spokeswoman for the Colorado attorney general. In an emailed statement, Tyler said, “We are gratified that the 10thCircuit Court upheld Colorado state law.”
Sheri Qualters can be contacted at email@example.com.