RALEIGH — Though the U.S. Supreme Court has recognized the right of individual citizens to possess firearms under the Second Amendment, the N.C. Court of Appeals says this right does not cover concealed weapons. North Carolina is not the only state to reach this conclusion. Appellate courts in Kansas and California also have held that the Supreme Court’s 2008 District of Columbia v. Heller decision does not establish a right to carry a concealed weapon.
In January 2011, Justin Kelly submitted an application to renew his North Carolina concealed handgun permit. Kelly had to answer a number questions, including one he had responded to five years earlier on his original application, asking if he “ever [had] been adjudicated guilty … for one or more crimes of violence constituting a misdemeanor, including but not limited to,” a series of criminal offenses listed on the form.
Kelly checked “no,” as he had done on his original application. This was incorrect, however. In May 2001, he had been convicted of assault on a female, one of crimes that state law says disqualifies an applicant from being issued a concealed handgun permit. Though the Gaston Sheriff’s Department didn’t discover the conviction when Kelly applied the first time, it did when he sought a renewal and rejected the application.
Kelly sued, a District Court judge ruled against him, and brought the matter before the state’s second highest court.
On appeal, Kelly contended that his fundamental right to bear arms was violated when the sheriff’s department refused to issue a concealed weapons permit. The Second Amendment of the U.S. Constitution states that “[a] well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
In the Heller ruling, the U.S. Supreme Court struck down the District of Columbia’s ban on the possession of handguns in one’s home, with the high court holding that the Second Amendment guaranteed the “pre-existing” “individual right to possess and carry weapons in case of confrontation.”
Kelly argued that the holding in Heller should extend to the right to carry and conceal a handgun outside the home. The Court of Appeals did not agree.
“In the instant case, petitioner was denied a concealed handgun permit pursuant to N.C. Gen. Stat. § 14-415.12 because of his previous conviction of assault on a female,” wrote Judge Ann Marie Calabria for the appeals court.
“While courts have consistently held that the Second Amendment protects an individual’s right to possess a weapon, courts have also found that the Second Amendment does not extend to an individual’s right to conceal a weapon. Therefore, we conclude that petitioner’s right to carry a concealed handgun does not fall within the scope of the Second Amendment, and N.C. Gen. Stat. § 14-415.12 is constitutional as applied to him.”
In Heller, the Supreme Court held that the Second Amendment’s definition of “bear arms” included an individual’s right to a gun “carry … upon the person or in the clothing or in a pocket.” The decision, however, also notes that the scope of the Second Amendment is not unlimited, that it is “not a right to keep a weapon whatsoever in any manner whatsoever and for whatever purpose.” It also acknowledged that courts long have “held that prohibitions on carrying concealed weapons were lawful under the Second Amendment and state analogues.”
In Nunn v. State (1846), a case cited by the Supreme Court’s majority in Heller, the Georgia Supreme Court held that a law prohibiting carrying certain weapons secretly was valid under the Second Amendment as it did not “deprive the citizen of his natural right of self-defense, or of his constitutional right to keep and bear arms.”
And in Robertson v. Baldwin (1897), the U.S. Supreme Court said “the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.”
Based on these precedents, the Court of Appeals held that even after Heller, the Second Amendment does not extend to concealed handguns.
Kelly could appeal the ruling, but the state Supreme Court is not obligated to hear that appeal.
The case is Kelly v. Riley, (12-273).
Michael Lowrey is an associate editor of Carolina Journal.