Third Circuit Court of Appeals Affirms the Right to Openly Carry Firearms

In a 2-1 decision, the Federal Third Circuit Court of Appeals published an opinion in Lara et al v. Commissioner Pennsylvania State Police No. 21-1832 which affirmed the right of 18-to-20-year-olds to openly carry firearms in public.

“III. CONCLUSION

For the foregoing reasons, we will reverse the decision of the District Court and remand with instructions to enter an injunction forbidding the Commissioner from arresting law-abiding 18-to-20-year-olds who openly carry firearms during a state of emergency declared by the Commonwealth.” (emphasis and italics added) Slip Opinion at page 36.

The dissenting judge took no position regarding Open Carry. His position is that persons under the age of 21 are not within the scope of “The People” referenced in the text of the Second Amendment.

Second to the holding of the opinion affirming the right to Open Carry, I enjoyed reading this excerpt from page 34 of the slip opinion:

“The Appellants have a ready and effective response. They say they are “agnostic” as to whether they get licenses to carry concealed weapons under §§ 6106 and 6109, or whether, despite § 6107, they can carry openly without a license during an emergency. (Reply Br. at 3-4.) In other words, the existence of a license is not what they are fighting about; it is the right to openly carry a gun regardless of a state of emergency. And they contend that enjoining the Commissioner from arresting 18-to-20-year-olds who openly carry firearms would in fact redress their constitutional injuries.”

“The Appellants” include The Second Amendment Foundation (SAF) and the Firearms Policy Coalition (FPC). The head of the FPC is Brandon Combs, the former E.D. of the CalGuns Foundation. In the 9th Circuit, the SAF and CalGuns were plaintiffs in a lawsuit called Richards v. Prieto in which its attorneys argued that Open Carry can be banned in favor of concealed carry, California has banned Open Carry, and so they are entitled to shall-issue concealed carry permits.

Their lawsuit was consolidated on appeal with the NRA/CRPA Peruta v. San Diego concealed carry lawsuit that made the same argument as did the SAF and CalGuns, that Open Carry can be banned in favor of concealed carry.

Both the Richards and Peruta lawsuits lost before an en banc panel of the 9th Circuit Court of Appeals which held there is no right to concealed carry, if there is a right to carry arms in public then the right is to openly carry arms. The Peruta plaintiffs filed a cert petition which the United States Supreme Court denied. In June of 2022, the United States Supreme Court published its opinion in NYSRPA v. Bruen where the Supreme Court once again said that the only manner of bearing arms that can be prohibited is concealed carry. Neither the majority opinion nor the concurrences in NYSRPA v. Bruen so much as mentioned the Peruta/Richards concealed carry cases.

In every court where the SAF argued that states can ban Open Carry in favor of concealed carry, the SAF lost.

This time the SAF and FPC reluctantly won. In this particular case, they said they were “agnostic” about the manner of carry. Based on their prior positions, the SAF and FPC would have been more than happy to retain the Open Carry ban in favor of shall-issue concealed carry permits.

The Third Circuit Court of Appeals joins the Seventh and DC Circuit Court of Appeals in holding that Open Carry is the right guaranteed by the Second Amendment. The only court to hold that Open Carry can be banned in favor of concealed carry is the Florida State Supreme Court. The majority opinion of that court in Norman v. Florida acknowledged that the United States Supreme Court in District of Columbia v. Heller held that Open Carry is the Second Amendment right and concealed carry can be banned but said it did not care.

If today’s Third Circuit Court of Appeals opinion is not vacated and reheard before an en banc court then it makes for a 3-1 Supreme Court Rule 10 split in favor of Open Carry. Resolving splits is what the U.S. Supreme Court says is their primary reason for granting cert petitions. SCOTUS says it isn’t their job to correct mistakes of law made by the lower courts. Congress has the power to rewrite the Rules of the Supreme Court. For that matter, the Justices can’t adopt rules unless Congress votes to approve those rules. But voters care more about Hunter Biden than they care about fixing our dysfunctional Federal court system.

Lara et al v. Commissioner Pennsylvania State Police

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