Federal judge rejects demand for open carry permits in Rhode Island

(CN) — 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.

Additionally, the attorney general’s decision on permitting is subject to judicial review for legal error, giving a rejected applicant an avenue to contest a denial.

“Considering that, in Rhode Island, an unrestricted license is a privilege and not a right, these interpretive safeguards add clarity to the statute and do not mean that the law is impermissibly vague,” Smith ruled.

O’Neill launched the legal challenge in 2023, arguing that he was denied an open carry license by Attorney General Peter Neronha’s office in 2021 despite meeting all the requirements to qualify. Neronha’s office found that O’Neill already had a restricted concealed carry permit, and thus failed to demonstrate a proper need for the unrestricted open carry license.

O’Neill appealed the attorney general’s decision, but was denied once again.

O’Neill and his fellow plaintiffs argued that this runs afoul of the landmark 2022 Supreme Court ruling in New York State Rifle & Pistol Association Inc. v. Bruen , which found that being able to carry a firearm is a constitutional right pursuant to the country’s tradition of gun ownership.

Rhode Island’s firearms law operates in the reverse of that tradition, O’Neill argued, as it restricts open carry instead of concealed carry — most laws historically did the opposite.

But Smith found the Bruen argument unavailing, as that ruling “did not go so far as to declare that the text requires open carry.”

“Plaintiffs’ argument to the contrary is foreclosed by Bruen itself,” the judge ruled. “There, the Supreme Court concluded that ‘[t]he historical evidence from antebellum America does not demonstrate that the manner of public carry was subject to reasonable regulation.’”

Additionally, Smith found that the attorney general’s “application of the act’s permitting structure to plaintiffs is relevantly similar to historical regulations, and thus consistent with the Second Amendment.”

A spokesperson for Neronha said that the attorney general is “grateful for the court’s decision, reaffirming the constitutionality of Rhode Island’s permitting system for the public carry of handguns.”

“This decision fully resolves this case in the State’s favor, though it remains subject to possible appeal,” the spokesperson, Tim Rondeau, said in a statement. “The attorney general will continue to vigorously defend Rhode Island’s gun violence prevention laws to ensure the public safety of all Rhode Islanders.”

O’Neill’s attorney, gun rights lawyer Frank Saccoccio, told Courthouse News on Monday that they’ll indeed be challenging Smith’s ruling in the First Circuit.

“We do not agree with his reasoning as it is not in line with the Bruen decision,” Saccoccio said in a statement. “We will be appealing his decision.”

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