10th Circuit Disarms|Concealed-Carry Challenge

(CN) - A Colorado law that prohibits nonresidents from getting concealed handgun licenses is constitutional, the 10th Circuit ruled.

Washington resident Gray Peterson claimed in 2010 that the director of the Colorado Department of Public Safety and Denver's Manager of Safety violated his Second Amendment rights by refusing to issue him a permit to carry a handgun in public.

Colorado Revised Statute § 18-12-203(1)(a) states that concealed carry permits can be issued only to legal residents of the state who are 21 or older.

"In light of our nation's extensive practice of restricting citizens' freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment's protections," 10th Circuit Judge Carlos Lucero wrote for the three-judge panel.

While Colorado does recognize concealed handgun licenses issued by some other states, Peterson's licenses - issued by Washington and Florida - did not qualify for reciprocity in Colorado, according to Lucero's 52-page ruling.

"As a result of this statutory scheme, Peterson claims he is barred from carrying a concealed firearm outside of his home, place of business, or private automobile in Colorado," Lucero wrote.

"Peterson further notes that the Denver Revised Municipal Code prohibits individuals from carrying firearms - concealed or not - unless the individual holds a valid CHL or 'is carrying the weapon concealed within a private automobile or other private means of conveyance, for hunting or for lawful protection of such person's or another person's person or property, while travelling.' ... Because Peterson does not own or otherwise control property in Denver, and generally uses public transit while visiting, he claims that he is 'completely disarmed' when in Denver.

"In his complaint, Peterson asserted six claims: (1) [Manager of Safety Alex] Martinez violated the Privileges and Immunities Clause by denying Peterson a CHL on the basis of non-residency; (2) [Department of Public Safety Executive Director James] Davis violated the Privileges and Immunities Clause by refusing reciprocity to Peterson's Florida CHL while granting reciprocity to Florida CHLs held by Florida residents; (3) Martinez violated the Equal Protection Clause by denying Peterson a CHL on the basis of non-residency; (4) Davis violated the Equal Protection Clause by refusing reciprocity to Peterson's Florida CHL; (5) Both defendants violated the Second Amendment by 'prohibiting any meaningful opportunity for [Peterson] to bear arms in the City and County of Denver through a licensing scheme that precludes [Peterson] from obtaining a necessary license'; and (6) Both defendants violated the Due Process Clause and the Privileges and Immunities Clause by prohibiting Peterson from bearing arms through the licensing scheme. Peterson requested a declaration that Colo. Rev. Stat. §§ 18-12-203(1)(a) and 213(1)(b)(I) are unconstitutional, and an injunction barring enforcement of those statutes."

Colorado Attorney General John Suthers intervened on behalf of Davis, the Department of Public Safety director, claiming he was protected by the 11th Amendment because he "had no role in enforcing Colorado's CHL reciprocity system."

State law requires sheriffs to administer the concealed carry licensing scheme. That responsibility lies with Martinez, the current Manager of Safety for the City and County of Denver, described in the opinion as the city's "ex officio sheriff."

Suthers persuasively defended the state law, Lucero found, showing that authorities could not get access to the information required to evaluate permit applications from nonresidents.

The District Court agreed, and granted summary judgment to Davis and Martinez.

The 10th Circuit found: "[The District Court] determined that Peterson's privileges and immunities/right to travel claim failed because the need for background information and monitoring was a substantial reason for treating residents and non-residents differently, and that the residency requirement was substantially related to that end. The court concluded that Peterson's equal protection claim failed because residents and nonresidents are not similarly situated given the differing quanta of information available for the two classes. As to the Second Amendment claim, the court applied intermediate scrutiny and concluded that the residency requirement was adequately justified by Colorado's need to evaluate and monitor CHL holders and the difficulty in doing so for nonresidents."

Peterson's follow-up appeal was unanimously rejected by the three-judge panel.

Lucero, joined by Senior Judge Bobby Baldock and Judge Harris Hartz, cited a U.S. Supreme Court ruling that held that "the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons."

That ruling is supported by hundreds of years of case law, Lucero wrote.

"Peterson does not convincingly argue otherwise. In his reply brief, Peterson contends that he 'does not assert a Second Amendment right to carry a concealed weapon,' but rather challenges the prohibition because it deprives him of 'any meaningful opportunity' to bear arms in the City of Denver. However ... we reject that characterization of Peterson's Second Amendment claim. Peterson has affirmatively waived any challenge to the Denver ordinance's restriction on the open carrying of firearms. And because we conclude that the concealed carrying of firearms falls outside the scope of the Second Amendment's guarantee, Peterson's Second Amendment claim was properly subject to summary judgment."

In an addendum, Lucero expanded upon his support for the District Court's decision.

"Even were concealed carry protected under the Second Amendment or the Privileges and Immunities Clause, I would yet affirm. I separately add this coda to advance an alternative basis for affirmance. Assuming that concealed carry were to be protected under the stated clauses, I nonetheless would remain in substantial agreement, on an alternative basis, with the analytical framework adopted by the district court.

"I would apply intermediate scrutiny to both claims to the extent concealed carry is protected, and would hold that the state has carried its burden under that standard. As part of its general public safety interest, Colorado has shown that ensuring CHL holders are qualified under state law is an important governmental objective. The state also proffered unrefuted evidence demonstrating that much of the information necessary to determine whether an individual is qualified for a CHL is kept in locally maintained databases, and that Colorado sheriffs do not have access to such information with respect to nonresident applicants. In light of law enforcement officials' averments that they would be effectively unable to determine whether a non-resident applicant is qualified to obtain a CHL, I conclude that the residency requirement is substantially related to the stated governmental objective."

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