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The court, in an opinion written by Judge Carlos Lucero, explained that longstanding historical precedent and language in the U.S. Supreme Court's 2008 decision in a case called District of Columbia v. Heller compelled its holding.
The decision by the U.S. Court of Appeals for the Tenth Circuit disagreed with a December 2012 opinion by the federal appeals court based in Chicago.
In that case, the U.S. Court of Appeals for the Seventh Circuit provided a semantic explanation that
"the right to 'bear' as distinct from the right to 'keep' arms is unlikely to refer to the home. To speak of “bearing” arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home."
The opinion in the case noted that, were a state legislature to sufficiently document the public benefits expected to follow from a ban on the concealed carrying of firearms, such a ban might be constitutional.
The Moore v. Madigan case is still before the Seventh Circuit. Illinois attorney general Lisa Madigan has asked the court to rehear it with all of its 11 judges, instead of just the three who decided the dispute last year, sitting as a panel.
Two other federal circuit courts of appeals - the Second Circuit, based in New York, and the Fourth Circuit, based in Richmond, have also ruled that the Second Amendment provides no right to carry a hidden firearm outside the home.
The discord on the issue among the four federal circuits could persuade the U.S. Supreme Court to take up the question at issue in both Peterson v. Martinez, the Tenth Circuit case, and Moore v. Madigan, the Seventh Circuit case, if asked to grant certiorari.
One question the Supreme Court would have to address in such a case the question how to handle clear, but not binding, language in a decades-old case that portended Friday's Tenth Circuit decision. In 1897 the Court opined that any right to "keep and bear arms" does not extend to possession of hidden guns in public.
Even in the Court's 2008 decision that confirmed a right to keep a handgun in a private home the justices in the majority were careful to point out that "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."
It went on to explain that its opinion in District of Columbia v. Heller should not be understood as undermining such "longstanding prohibitions."
The federal appellate judges who issued Friday's opinion emphasized that, in that respect, Heller is consistent with longstanding precedent. They cited a 2009 law review article by noted libertarian law professor Eugene Volokh, which perfunctorily noted that "by the end of the 19th century the constitutionality of such [concealed carry] bans had become pretty broadly accepted."
The court also pointed to a 2011 academic study by gun advocate David T. Hardy, which concluded that state appeals courts had rejected, as early as the 1820s, any inconsistency between the constitutional firearms rights provisions and concealed carry laws.
It is possible that other federal courts could limit their reading of Friday's decision in Peterson v. Martinez to statutory prohibitions on granting concealed carry permits to non-residents of a state.
The case arose when a Washington resident sued to enjoin Colorado's concealed carry law because he was denied such a permit on the basis of the state's statutory provision forbidding an out-of-state resident from receiving one.
Courts have, in the vast majority of constitutional challenges to the gamut of state firearms laws since the Heller case was decided, upheld those statutes.
