Rhode Island Court Just Made the 2nd Amendment Optional

Gun rights attorney Tom Grieve, host of The Four Boxes Diner, is sounding the alarm over a federal court decision in O’Neil v. Neronha that he says turns the Second Amendment into a government-granted option rather than a guaranteed right. In his analysis, the case doesn’t outright ban public carry, but it lays the groundwork for a legal “weaponized loophole” that could be used by anti-gun states nationwide to effectively wipe out concealed carry – without ever passing a direct ban.

The Case at Hand

According to Grieve, the case involved seven Rhode Island residents who already had concealed carry permits. In the past, they also held “unrestricted” permits, which allowed both concealed and open carry. But in 2021, the Rhode Island Attorney General denied their renewals for the unrestricted permits, leaving them with concealed carry licenses only. The AG’s office argued that since they could still carry concealed, there was no need to grant open carry rights.

Plaintiffs’ Argument: Full Constitutional Protection

The plaintiffs challenged the denial as a violation of their Second and Fourteenth Amendment rights. As Grieve summarized, they argued that the Constitution doesn’t let the government ration which mode of carry you can exercise. Open and concealed carry are both part of the right to “bear arms,” and restricting one based on the Attorney General’s subjective “proper showing of need” turns a right into a privilege. The core of their position was simple: the government doesn’t get to decide if you “need” a right before you can exercise it.

The State’s Position: Discretion as a Safety Valve

Rhode Island’s Attorney General defended the scheme as a historically consistent regulation. Grieve noted that the state’s lawyers claimed the Second Amendment is satisfied as long as residents have some way to carry – in this case, concealed carry. They also insisted there was no liberty or property interest in open carry because state law treats those permits as discretionary privileges, not rights.

Judge Smith’s Ruling

In O’Neil v. Neronha, U.S. District Judge Smith largely accepted the state’s framing. As Grieve explained, the judge leaned heavily on the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen. While Bruen struck down New York’s “proper cause” law, it acknowledged that states historically regulated the manner of carry – sometimes banning concealed carry, sometimes banning open carry, but rarely both. Judge Smith concluded that as long as one method remains available, the Second Amendment is not violated.

The “Relevantly Similar” Standard

Grieve pointed out that the judge described Rhode Island’s restriction as “relevantly similar” to historic laws that limited only one form of public carry. This is important because it echoes Bruen’s language allowing courts to use broad historical analogies rather than exact matches. To Grieve, that approach leaves the door wide open for future restrictions based on loose interpretations of history.

The Vagueness Challenge Fails

The plaintiffs also argued that the “proper showing of need” standard was unconstitutionally vague. But Judge Smith dismissed this, citing the Attorney General’s policy guidance and the availability of judicial review. Grieve criticized this reasoning, noting that it effectively leaves the standard up to the AG’s discretion and forces applicants to fight costly legal battles if denied.

The Real-World Effect

As Grieve explained, the ruling means Rhode Island can arbitrarily deny open carry if you already have concealed carry – or vice versa. It’s like telling someone that their freedom of speech is protected only if they write their opinions, not speak them, or that the Eighth Amendment protects them from “cruel” punishments but not “unusual” ones. It’s partial protection, not full protection, of a fundamental right.

The “Weaponized Loophole” in Bruen

The most troubling part, Grieve warned, comes from a single sentence in Bruen: “States could lawfully eliminate one kind of public carry, concealed carry, so long as they left open the option to carry openly.” He fears that anti-gun lawmakers could exploit this by banning concealed carry entirely while leaving open carry legal, knowing that most people – especially in urban and suburban areas – won’t open carry in daily life. The result would be a dramatic reduction in actual public carry without technically banning it.

Why This Matters Beyond Rhode Island

While O’Neil v. Neronha is specific to Rhode Island, Grieve believes it offers a roadmap for other states looking to sidestep Bruen. In practice, a state could ban concealed carry, legalize open carry, and watch carry rates plummet. He predicts that within the next decade, some state will try this tactic. If courts uphold it, the effect could be national.

A Right Shouldn’t Depend on Mode of Exercise

Grieve’s warning makes sense – rights aren’t rights if the government can dictate the only acceptable way to exercise them. The logic in O’Neil essentially says, “You can have the right, but only in the form we like.” If that reasoning spreads, it could apply not just to the Second Amendment, but to free speech, due process, and beyond.

Watch for Legislative Moves

Given the political climate in certain states, it wouldn’t be surprising if lawmakers start introducing bills that restrict one form of carry while pointing to Bruen for legal cover. If that happens, these cases will become critical tests of whether the courts are serious about protecting the full scope of the Second Amendment – or comfortable treating it as optional.

The Bottom Line

In the wake of O’Neil v. Neronha, Rhode Island residents still have concealed carry, but open carry is at the mercy of the Attorney General’s “proper showing of need” standard. The case leans on language from Bruen that could become a powerful tool for restricting carry nationwide. As Grieve put it, we may be halfway down the road to seeing this loophole used – and the only question is whether courts or legislatures will be the first to weaponize it.