June 24, 2019

Tenth Circuit: Colorado Sheriff’s Denial of Concealed Handgun License to Washington Resident Affirmed

The Tenth Circuit published its opinion in Peterson v. Martinez on Friday, February 22, 2013.

Gray Peterson, a resident of Washington, applied for a concealed handgun license (“CHL”) from the ex officio sheriff of Denver, Colorado. Pursuant to state law, Colorado sheriffs may issue CHLs only to state residents. Colo. Rev. Stat. § 18-12-203(1)(a). Peterson’s application was accordingly denied, prompting Peterson to file suit against the Denver sheriff and Colorado’s executive director of the Department of Public Safety. Peterson claimed that Colorado’s policy with respect to non-resident CHL applicants violated the Second Amendment and the Privileges and Immunities Clause of Article IV of the United States Constitution.

The district court concluded that the executive director of the Department of Public Safety was entitled to Eleventh Amendment immunity because he had no connection to the enforcement of the challenged statute. The Tenth Circuit agreed with that conclusion. Colorado  law requires “each sheriff to implement and administer” the CHL licensing scheme. Colo. Rev. Stat. § 18-12-201(3). Because sheriffs are responsible for administering the state’s CHL regime—not the executive director of the Department of Public Safety—Peterson’s claims against the latter do not fall within the Ex parte Young, 209 U.S. 123 (1908), exception to Eleventh Amendment immunity.

With respect to Peterson’s claims against the Denver sheriff, the Tenth Circuit concluded that the carrying of concealed firearms is not protected by the Second Amendment after applying intermediate scrutiny. The majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. In light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, the Tenth Circuit held that this prohibition did not fall within the scope of the Second Amendment’s protections. In other words, the Second Amendment does not provide the right to carry a concealed firearm. Additionally, it is virtually impossible to evaluate a non-resident CHL applicant’s background thoroughly enough to determine that the applicant, if granted a CHL, will not be a danger to himself or the community.

The Tenth Circuit reached the same conclusion with respect to Peterson’s claim that the residency requirement violated his right to travel and violated his rights under the Privileges and Immunities Clause of the U.S. Constitution. As the Supreme Court explained in Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988), “it is only with respect to those ‘privileges’ and ‘immunities’ bearing on the vitality of the Nation as a single entity that a State must accord residents and nonresidents equal treatment.” Id. at 64-65 . Because the concealed carrying of firearms has been prohibited for much of our history, the Tenth Circuit concluded that this activity failed the Friedman test. In sum, the Tenth Circuit held that carrying a concealed weapon is not a privilege or immunity protected under Article IV.


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