In layman’s terms: A U.S. District Judge ruled in favor of Rhode Island’s subjective requirement to show “a need” for an unrestricted handgun permit for open carry. The Bruen ruling, issued by the U.S. Supreme Court in 2022, specifically invalidated subjective criteria such as a “justifiable need” as a basis for allowing the carry of firearms in public.
On August 1, a U.S. District Judge overseeing a Second Amendment case in Rhode Island upheld the state’s subjective “need” requirement for open carry permits, putting his decision at odds with the Supreme Court’s Bruen case, which eviscerated such subjective criteria as unconstitutional.
In the case of O’Neil v. Neronha, before the United States District Court serving the District of Rhode Island, Senior District Judge William E. Smith issued a 15-page decision where he granted summary judgment in favor of the state. He also determined no hearing was needed, even though there were several motions before the court, including evidentiary motions.
The case was brought in February 2023 by Michael O’Neil, a lobbyist for the Rhode Island 2nd Amendment Coalition and a firearm instructor, along with six other individuals. He sought to acquire—and was denied in 2021—an “unrestricted” permit via the state’s “discretionary” permitting scheme, which would allow both concealed and open carry. O’Neil was specifically challenging the state’s unconstitutional condition of “a proper showing of need,” which is a purely subjective criterion that the Bruen Supreme Court decision disposes of.
Interestingly, the plaintiffs had previously possessed “unrestricted” permits. The decision notes:
Each possesses a restricted permit. And each previously possessed an additional unrestricted permit. But in 2021, the AG denied all their renewal applications for these unrestricted permits, finding that they did not need them because they already had restricted permits.
Judge Smith’s opinion evidences extreme hostility to Second Amendment liberties in general, writing that:
Under Rhode Island law, permits of this nature are a privilege and there is no Constitutionally protected liberty interest in obtaining one.
His opinion is also hostile specifically to the Bruen precedent. He gives a cursory attempt to apply the two-part Bruen test as to 1) whether the Second Amendment’s plain text covers plaintiffs’ proposed conduct, and 2) whether the law in question is consistent with this nation’s historical tradition of firearm regulation.
Judge Smith’s opinion isn’t just bad law; it’s shockingly hostile to Supreme Court precedent, as evidenced by his reasoning that, “…while Bruen held that the Second Amendment’s plain text protects ‘carrying handguns publicly for self-defense,’ it did not go so far as to declare that the text requires open carry.” It’s difficult to justify the judge’s logic, given that at the time, nearly all arms were carried openly.
The reasoning gets even more twisted when Judge Smith weighs the question of a historical tradition of firearms regulation:
But the Court need not dive too deeply into this question because, even assuming the text covers open carry, Defendants’ application of the Firearms Act to regulate Plaintiffs’ manner of public carry is within the nation’s historical tradition of regulation.
There, the Supreme Court concluded that “[t]he historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation.” And it drew that conclusion, in part, from its finding that historically, “States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly.” The Firearms Act, through its permitting structure, does just this, albeit in reverse: it regulates Plaintiffs’ manner of public carry in that it limits their right to open carry but leaves unaffected their right to concealed carry.
The Judge’s conclusion is not at all what the authors of the Bruen opinion intended, but nevertheless he turns it on its head and, having at least cited Bruen, calls it a day, even mocking the plaintiffs’ objections to the obvious error: “Plaintiffs make much of the fact that the Act’s permitting structure reverses common historical regulations allowing open carry and limiting concealed carry.”
In typical fashion, the state took the position that gun laws somehow improve public safety. “The Attorney General will continue to vigorously defend Rhode Island’s gun violence prevention laws to ensure the public safety of all Rhode Islanders,” said Timothy Rondeau, a spokesperson for the attorney general’s office.
O’Neil’s attorney, gun rights lawyer Frank Saccoccio, told another news source that they will 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.”
