Interesting. I, too, don't understand the decision to forgo a challenge to the Denver law banning open carry. The court hung them out to dry on the concession. It was a risky decision that they probably regret in hindsight. They tried to undo the concession in the reply brief but it was too late. But that decision appears to limited to this case. The argument made by Gura and SAF in other cases is simply that either open carry or concealed carry must be available -- that the state cannot prohibit both. That argument prevailed in Moore sufficiently to invalidate the total ban on outside the home carry and that win was and is huge, especially with the denial of en banc. And does anyone have any serious problem with the way that Gura structured the petition for certiorari in Kachalsky with the same argument? I know that I don't. That and Moore are the next big cases, not this case.
The plaintiff's decision (and 10th Circuit's opinion focusing on that decision) not to challenge the Denver ordinance sharply lessens the damage caused by this opinion. The opinion doesn't reach the outside the home point at all and thus does not conflict with either Kachalsky or Moore. It just applies old SCT precedent that suggests in dicta that a state may ban concealed carry. I can hardly much blame the court for applying that precedent under circuit law. That opinion is rather limited to the unique situation in Colorado, where the state gives CCW permits to residents and allows open carry for everyone, except in Denver, where the CCW is good, but open carry is banned by local ordinance. Some other non-resident is free to challenge the Denver ban on open carry. Colorado residents can carry on their Colorado CCW permits in Denver. Only non-residents are seriously screwed and only then in Denver. Someone posted that en banc and cert will be sought, but I am not sure what the theory of any such petition will be. Can't wait to read it.
The court's rejection of the P&I Clause argument is disappointing and is very bad precedent for challenges to similar bans on non-resident issuance. But that was always a tough argument and even that decision has limited impact. Currently, only a few states like Colorado and South Carolina both ban the issuance of CCW permits to out of state residents AND refuse to accord reciprocity recognition to CCW permits issued to non-residents by other states. The sky has not fallen. Yet, at least not yet.
Last edited by esqappellate; February 24, 2013 at 12:25 PM.