Mark Joseph Stern, Slate’s writer on legal and LGBT issues, was quite pleased with Thursday’s Ninth Circuit ruling that there is no right to carry concealed firearms. In praising the decision, though, he accidentally undercuts the entire recent legal movement in favor of gay marriage.
In Stern’s telling, the Ninth Circuit’s ruling is a “compelling, comprehensive,” almost irrefutable takedown of the right to carry concealed weapons, because of one simple fact: Concealed carry wasn’t a right in the 1800s.
“Until quite recently … there was a near-universal consensus among courts and legislatures that America’s Constitution, historical practices, and legal traditions do not create a right to carry concealed arms in public,” Stern writes in his piece. “That is enough, under Heller and McDonald, to reject the Peruta plaintiffs’ argument. Gun rights advocates may press legislatures to enact their policy preferences into law, but they cannot conjure a constitutional right to concealed carry this late in the game. And the 9th Circuit’s ruling in Peruta should give pause to activists who think they can use the courts to vindicate a right that never existed in the first place.”
Needless to say, Stern had no complaints about the court system “conjuring” a right after United States v. Windsor or Obergefell v. Hodges, the decisions that resulted in the national legalization of same-sex marriage.
Stern’s argument regarding concealed carry glosses over some important issues as well. While he is perfectly correct that courts repeatedly upheld concealed carry bans in the 1800s, at the time open carry was almost always legal, and it was believed a person would only carry a concealed weapon for some sinister purpose. As a result, banning concealed carry hardly stopped a person from carrying a gun.
Today, though, the situation is reversed. In California, open carry of a handgun is illegal, and it is not assumed that concealed carry is nefarious. Even Slate has written an article faulting people for carrying openly rather than keeping their guns hidden like responsible citizens.
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