PROVIDENCE – A gun-rights advocate is suing state Attorney General Peter F. Neronha in federal court, challenging the constitutionality of the state’s requirement of a “showing of need” for a permit to carry a concealed weapon.
Warwick resident Michael O’Neil filed suit Wednesday in U.S. District Court, arguing that the state had violated his Second and Fourteenth Amendment rights by refusing to renew his concealed-carry permit.
O’Neil, who is vice president of the Rhode Island Second Amendment Coalition and a certified National Rifle Association firearms instructor, is testing the constitutionality of the state’s two-pronged permitting process. Under state law, municipalities and the attorney general’s office can issue concealed-carry permits.
While the law dictates that a city or town “shall” issue a concealed carry permit to a qualified applicant who is at least 21 years old, the attorney general’s office “may” issue a license or permit “upon a proper showing of need.” O’Neil argues that showing of need is undefined and arbitrary and violates the Second Amendment. He asks the court to strike down the law and the attorney general’s regulations.
O’Neil, 58, argues that he meets all the requirements to carry, namely that he is over age 21, is mentally competent, doesn’t abuse drugs or alcohol and passed the gun-safety exam administered by the state Department of Environmental Management, but had been denied a permit based on a “showing of need” criteria that remains undefined under the law. Plus, he said, the attorney general’s office has issued him a concealed carry permit every four years since 2013. He has also been granted permits by the Town of Johnston and the City of Warwick, as well as the states of Massachusetts and Utah.
“People, if they are good law-abiding citizens, they do have a right to a permit to carry a firearm in public. The attorney general’s office is abusing discretion by denying permits to people who have had them for 20, 25 years for some top secret, double secret rules,” said Frank Saccoccio, who, with Thomas W. Lyons, represents O’Neil.
Attorney General Neronha’s office stands by the state’s concealed-carry permitting as constitutional.
“As the attorney general noted in July when the decision of New York State Rifle & Pistol Association, Inc. v. Bruen (Bruen) was issued, Rhode Island’s dual concealed-carry permitting framework is constitutional,” spokesman Brian Hodge said in an email, referring to a U.S. Supreme Court ruling that struck down a New York law regulating the carrying of concealed weapons.
The attorney general’s guidance lists several factors that staff considers in assessing an applicant’s showing of need. They include an articulable risk to life, limb or property; skill and training to properly handle a weapon; a plan to properly secure the firearm; and a determination of whether the individual will use the weapon for unlawful purposes. Also in the mix are whether there are other options the applicant could employ to reduce a possible danger or risk and whether their possession of a loaded firearm will increase risk to themselves or the public.
The state also weighs whether the applicant has ever been the subject of a protective order or exhibited unlawful or dangerous conduct.
O’Neil applied with Neronha’s office to renew his permit in October 2020. The office denied renewal in January 2021, telling him in writing that he had not provided a “proper showing of need for a permit to be issued.” The state added that he already had a permit in Warwick that provides him with the ability to lawfully carry in Rhode Island, but otherwise failed to articulate a reason for denial.
O’Neil appealed, stating in a phone conversation through Saccoccio that he sought reconsideration because a permit from the attorney general’s office provides reciprocity in other states and having a second permit would serve as “backup” in case the Warwick permit expires. Again, the state said the need was insufficient.
O’Neil asked for reconsideration again in July 2021 for substantially the same reasons and was again denied.
O’Neil sought a state Supreme Court review, which was denied even as six similar challenges were granted, Saccoccio said.
“I was scratching my head on that,” Saccoccio said.
After O’Neil filed his federal suit Wednesday, the state Supreme Court rejected the other six cases as well, he said. The state viewed that rejection Thursday as an affirmation of its denial of the six permits.
“[O’Neil] is reasonably concerned that the denial of his application by defendants will prejudice his ability to renew those other permits or obtain others, as concealed-carry applications typically ask whether the applicant has ever had an application denied elsewhere,” the suit says.
O’Neil looks to U.S. Supreme Court precedent in arguing his case, including the Bruen case issued last year. The court held in Bruen that the Second and Fourteenth Amendments guarantee Americans the right not only to “keep” firearms in their homes, but to “bear arms,” meaning to carry a gun for self defense outside of the home, he said.
The ruling regulating concealed carry weapons identified Rhode Island as a “shall-issue” state. The Supreme Court observed that the Rhode Island Supreme Court has flatly denied that the “[d]emonstration of a proper showing of need” is a component of a suitability requirement.
O’Neil emphasized that under Bruen, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation.”
As such, O’Neil said, the burden is on the state to justify the denial of his renewal application “based on the historical tradition of the activity that it is now attempting to regulate and ban.”
O’Neil also charges that the state has violated his due process rights by applying overly broad and vague factors to assess “need.”
“We think that the Bruen decision reinforces his claim that his permit be renewed,” said Lyons, his lawyer.
The state countered in an email Thursday that the U.S. Supreme Court “specifically and explicitly observed that Rhode Island’s unique permitting framework affords access to a licensing process through municipal authorities that does not require any showing of need,” in contrast to New York’s law.
“The problem that the Bruen court found with New York’s licensing scheme was that no one could obtain a permit without a showing of need. In Rhode Island, everyone can – by making application to their municipal authority. Accordingly, Rhode Island’s concealed-carry permitting scheme is constitutional and both avenues remain fully available to Rhode Islanders,” Hodge said.
“Additionally, the Rhode Island Supreme Court has noted, because Rhode Island law `provides for both discretionary and mandatory licensing’ procedures, the constitutional right to keep and bear arms is ‘fulfilled,'” he said.