Courts Split on Right to Carry Firearms Outside the Home | nraila.org/
Sunday, March 25, 2012
NRA-ILA Legal Update -- March 2012 /www.nraila.org/
Unquestionably the hottest issue in Second Amendment litigation today is whether the Second Amendment protects a right to carry
firearms outside the home for personal protection—and if so, what might be the limits on that right. Until recently, far too many courts have wrongly claimed that because the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago only struck down bans on handgun possession in the home, that’s all there is to the Second Amendment.
Now, there are signs that this resistance is weakening. In a big win for gun owners’ rights in Maryland, on March 5, a federal judge ruled in the case of Woollard v. Sheridanthat a key provision of the state’s gun laws is unconstitutional. Judge Benson Everett Legg declared that Maryland's requirement for a "good and substantial reason" to obtain a concealed-carry permit violates the Second
Amendment protection of the right to keep and bear arms. Though this is not an NRA-funded case, both the result and the reasoning give hope for future progress on the issue.
"The Court finds that the right to bear arms is not limited to the home," Judge Legg wrote in his 23-page ruling. "In addition to self-defense, the right was also understood to allow for militia membership and hunting. To secure these rights, the Second Amendment’s protections must extend beyond the home: neither hunting nor militia training is a household activity, and 'self-defense has to take place wherever [a] person happens to be.'’'
Judge Legg added, "A citizen may not be required to offer a 'good and substantial reason' why he should be permitted to exercise his rights. The right's existence is all the reason he needs."
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At press time, the state of Maryland planned to appeal the decision, and had already filed a motion asking Judge Legg to clarify whether he intended to impose an injunction against enforcement of Maryland’s current law.
Meanwhile, several NRA-supported cases are addressing the same issue. For example, the NRA has appealed a January 19 decision by a federal court in Texas, which held that the Second Amendment doesn’t protect any right to keep or bear arms outside the home.
The decision, handed down by U.S. District Judge Sam Cummings of the Northern District of Texas, came in the case of Jennings v. McCraw, in which a group of law-abiding 18- to 20-year old adults challenged the state law prohibiting issuance of concealed handgun licenses to persons under 21, who are treated as adults for virtually every other purpose under the law. (The NRA is also a party on behalf of its members in this age group.)
Judge Cummings ruled that it was unnecessary to address the state’s discrimination against young adults because “the right to carry a handgun outside of the home … seems to be beyond the scope of the core Second Amendment concern articulated in [District of Columbia v.] Heller.” In fact, the Supreme Court in Heller never said the Second Amendment doesn’t apply outside the home. The court only said that the home is the place “where the need for defense of self, family, and property is most acute”—implying that there are other places where the need is less acute, but still exists. Likewise, the Court suggested that it would uphold bans on carrying guns in “sensitive places”—which implies that carrying in places that are not “sensitive” would be protected under the Second Amendment.
Also on January 19, a federal judge in Chicago allowed NRA-supported plaintiffs to move ahead with a challenge to that city’s laws that ban anyone from possessing or carrying a handgun except in his or her home, and that ban possession or carriage of a long gun anywhere outside his or her home or place of business.
The case, Benson v. City of Chicago, challenges several of the anti-Second Amendment restrictions that were enacted days after the city’s handgun ban was struck down by the U.S. Supreme Court. Other issues contested in the case include the city’s ban on nearly all firearm transfers and on the operation of gun stores, as well as its law that allows each Chicago license holder to keep only one “assembled and operable” firearm within the home.
The city had argued that the carry challenge should be dismissed, claiming there was no way the courts could provide relief because the same conduct was prohibited statewide by Illinois law. In the ruling, Judge Edmond E. Chang of the U.S. District Court for the Northern District of Illinois pointed out that Chicago’s ordinance actually was stricter than state law: Illinois does allow people to possess and carry guns in their places of business, or in another person’s home.
Other NRA-supported cases on the same issue include Peruta v. County of San Diego, which challenges discriminatory permit issuance under California law and Shepard v. Madigan, challenging Illinois’ complete denial of any lawful way to carry firearms for self-defense outside one’s home or place of business. Peruta is pending in the Ninth Circuit U.S. Court of Appeals and Shepard is awaiting action in the U.S. District Court for the Southern District of Illinois.