The Next Gun Control Battle: A Right To Carry Firearms in Public?

The latest skirmish over gun control is whether the Second Amendment protects the right to carry concealed weapons outside the home

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Brendan Smialowski / Bloomberg / Getty Images

A sign is held up by a protestor outside the U.S. Supreme Court, which was hearing arguments in the gun possession case District of Columbia v. Heller, in Washington, D.C., U.S., on Tuesday, March 18, 2008.

With all the battles going on over guns, now there is a new one: whether there is a constitutional right to carry a firearm in public. The Supreme Court has said the Second Amendment guarantees the right to have a gun at home, but it left open whether that right extends to the street. Last month, two powerful federal courts came down on opposite sides of the question. The issue will no doubt eventually land in the Supreme Court – and the stakes will be high.

(MORE: If We Want Gun Control, We’ll Need to Compromise)

In 2008, the Supreme Court overturned a lot of accepted wisdom about gun control when it ruled in District Columbia v. Heller that the Second Amendment creates an individual right to possess a firearm. Until then, it was widely – if not universally – believed that the amendment was about raising “a well-regulated militia” – not about guaranteeing individuals the right to carry a gun.

Still, that 2008 ruling was essentially narrow: it struck down a Washington, D.C. law that banned possession of handguns in people’s homes. Heller was a huge victory for the gun-rights movement, but it was unclear how sweeping its impact would be. There has been a flurry of cases working through the legal system trying to see just how far the constitutional right to own a gun goes.

Late last month, the Denver-based U.S. Court of Appeals for the 10th Circuit ruled that there is no Second Amendment right to carry a concealed weapon in public. A man who had been denied a concealed handgun license – because he was not a state resident – sued, insisting his constitutional rights had been violated. He said the denial had left him “completely disarmed” in public.

The court rejected the man’s claim. It said that all constitutional rights come with limitations – including the Second Amendment right to be armed. And it said that the Supreme Court in Heller had specifically noted that America has a long tradition of bans on concealed weapons – and of courts upholding them. Given all of this, the court concluded that there is no Second Amendment right to carry a concealed weapon in public.

(MORE: A Sportsman’s Viewpoint: We Need a Moderate Alternative to the NRA)

The same day, however, another federal appeals court came out the other way. The Chicago-based U.S. Court of Appeals for the 7th Circuit declined to set aside a December ruling that the Second Amendment does protect people’s right to carry concealed weapons in public. (Confused yet?) The court struck down an Illinois state law banning concealed weapons. Judge Richard Posner, who wrote the decision, said, “The Supreme Court has decided” that the Second Amendment “confers a right to bear arms for self-defense, which is as important outside the home as inside.”  He added that a Chicago resident was “a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.”

But there’s a lot of grey area between a rough sidewalk and a luxury highrise. The Chicago court left opened the possibility that a narrower concealed weapons ban could be constitutional. The Illinois legislature is now working to come up with one, possibly a law that requires people to get training and a permit to carry a concealed weapon in public, and bans concealed weapons from schools, daycare centers, government offices, and other sensitive locations.

(MORE: Is This The End for the Core of the Voting Rights Act?)

The conflicting Denver and Chicago rulings underscore just how uncertain gun law is now. Does the Second Amendment simply confer a right to have a gun at home? Does it mean there is a right to have a gun in public – but that states can still ban concealed weapons? Does it prohibit complete bans on concealed weapons – but allow more narrowly drawn ones, such as a requirement that people get permits to carry concealed weapons? Or does it, as some gun-rights advocates believe, bar any restrictions on carrying guns – in home or on the street, in the open or concealed?

It is unlikely that Second Amendment law will end up in such an extreme position – and it should not. There are two kinds of rights involved in gun regulations: the right that the Supreme Court recognized in Heller to have a gun, and the right of the public not to be unduly exposed to the considerable dangers imposed by widespread availability of guns. It is one thing to say that there is a constitutional right to keep a gun at home for protection. It is quite another to say there is a constitutional right to bring a hidden gun into a daycare center. Even though the Supreme Court has expanded the Second Amendment, there is little reason to believe it will take it that far.

76 comments
DanParker
DanParker

Wow.  This piece got almost nothing correct with regard to the law and the history of 2nd Amendmett jurisprudence.  Of course, the unmistakable clue that this would be the case was this display of fundamental constitutional ignorance:

"...that the Second Amendment creates an individual right to possess a firearm."

The Bill of Rights did not "create" anything.  It enumerated and provided guarantees of protection for rights that were viewed as natural and that were pre-existent at the time the Constitution was authored.  Once you get such a basic concept wrong you stand little-to-no chance of understanding anything about issue like this...as evidenced by how wrong the author proceeds to get the record of case law on the matter.

jamesdagreatest
jamesdagreatest

If you were homeless do you have the right to own a gun. If a home owner has the right to own a gun a homeless person would also have the rights to own a gun therefore you have the right to bear a gun on your person regardless of home ownership

CRTC_Nichols
CRTC_Nichols

How hard is it to read a decision from a court?  The US Supreme Court said that we have the right to openly carry loaded handguns in public and that the carrying of weapons concealed can be prohibited.  Judge Posner in his 7th Circuit decision said the same thing as did the 10th Circuit Court out of Denver.  Concealed carry lawsuits have lost in every court.  Fortunately, every time they lose it adds another decision in support of my Federal lawsuit to overturn California's 1967 ban on openly carrying loaded firearms in public.  http://CaliforniaRightToCarry.org

RoyF
RoyF

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

To "bear Arms" means to carry arms. And in todays laws passed by 34 states with " Shall issue"concealed carry laws provides that right for those law abiding citizenry to do so.When Florida passed the first shall issue permits in 1987, anti-gun nuts  cried " Wild West shootouts " over parking spaces and blood in the streets to which didnt happen and crimes plummeted. Florida has over 1,000,000 permits issued now. Stats provided by the state of Florida had only 168 permits revoked due to use of a gun in a crime since 1987.Do the math percentage on that.

houser55
houser55

When will local idiot court be stripped of the ability to rule on constitutional issues? Some schmuck judge in some schmuck county has no background, education, or reasonable knowledge of upholding constitutional rights, and none of them beyond a federal level should be allowed legally to turn over constitutional rights decisions. It's costing the country billions of dollars to fight all the idiotic rulings from lower courts who have a God complex. Second Amendment is about personal right to arms. Years ago those who fought to destroy the U.S. were called pinkos....I think that term is relevant today. Clean our country of those not worthy of holding position in it's ruling arm. Go sit in a ditch in a country that already doesn't give a crap about personal freedoms.

Pmshawjr
Pmshawjr

Inexorably the gun enthusiasts are driving our society to become another shooting gallery like Lebanon, Afghanistan, or some of the narco controlled states in Mexico. They completely ignore the rights of the majority of citizens who want to live in a safe community, free from gun violence.

Tragedy after tragedy occurs and nothing gets done because it is so hard to have a meaningful, sensible gun safety public policy that can survive a legal challenge under the 2nd Amendment, even though we've long since abandoned the concept of a "well regulated militia" of citizens which was the whole reason for the amendment in the first place. It is time for a change.

I have drafted a petition to repeal the 2nd Amendment that does not impose gun controls or advocate taking away anyone's guns. It does take away the present unabridged right to own and use guns. If it passes, we would start public policy on gun ownership and use from scratch. The petition says:

"We the people of the United States request that both houses of Congress, pursuant to Article 5 of the Constitution of the United States, repeal the Second Amendment of the Constitution of the United States."

Will you sign this petition? Click here:

.

http://signon.org/sign/repeal-of-the-second?source=c.em.mt&r_by=4995011

Thanks! Please forward this to your like minded friends.

Elvisfofana
Elvisfofana

Evidence in Europe points out that a strict weapon ban immediately makes the number of casualties as a result of those guns go down. So a weapon ban will save more lives than carrying them. This has been proven in Europe. Why can't Americans stop being cowboys ? You don't see any Europeans claim the right to carry a sword do you ?

Evo1
Evo1

You sure are stretching the truth about all this. First, the idea tha the Second Amendment was "until then, widely – if not universally – believed that the amendment was about raising “a well-regulated militia” – not about guaranteeing individuals the right to carry a gun", is completely false. That idea was entirely an invention of the mid-20th century, when two lower federal courts freaked out over the Supreme Court's ruling that private citizens had a right to own firearms suitable for military service in US v. Miller. The "militia right" idea was not only not universally ever accepted by the lower federal courts, it has never been upheld by any Supreme Court decision. And the only reason Heller was unique in explicitly stating that the 2nd Amendment protected an individual right is because in all the previous 2A cases before the court, the court just assumed that it was understood, as did everyone until after Miller, which could only have decided the way that it was, as is true with all previous 2A cases, if a personal right is taken for granted. Otherwise the court would have just rejected Miller's case on the basis of his lack of standing to make a 2A claim.

As for a right to carry n public, Heller also did address this, although in very little detail. Because DC tried to claim that the term "bear arms" meant "to serve in the military" (which makes no sense in terms of a right), the Heller court was compelled to analyze the meaning of that phrase in order to reach a decision (making their definition binding). And that definition came, of all places, from the most liberal justice on the court, Ruth Bader Ginsburg. That definition was "wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person." That, clearly, is not a right limited to one's home, as it would make no sense as such. So to claim that Heller didn't already establish that a right to carry outside the home exists is also not true.

EvanWoolley
EvanWoolley

Why do libs claim the right to carry a gun in public is dangerous?  The 8,000,000 CCW permit holders in the country have a lower crime rate than law enforcement officers (0.04%).  A law abiding citizen can carry a gun ANYWHERE, school, church, daycare and the public is no less safe.  The problem is criminals carrying guns.  Guess what, criminals carry guns even when it is illegal. 

JacksonBrim
JacksonBrim

@TIME @timeideas the fact that there is a need for prisons serves to show that there is a need for guns as personal protection

teebonicus
teebonicus

Fundamental rights are not "granted" by the Constitution, they are GUARANTEED by it. They preexisted the Constitution, indeed, even the republic.

"The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." - U S v. CRUIKSHANK, 92 U.S. 542 (1875) 92 U.S. 542

The "accepted wisdom" you declare was not any such thing. It was progressive propaganda created from a deliberate misreading of U.S. v. Miller (1939), which Justice Scalia authoritatively corrected in D.C. v. Heller:

"Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment." - DISTRICT OF COLUMBIA v. HELLER (No. 07-290) 478 F. 3d 370, affirmed.

Adam, you appear to be one of the many, many victims of progressive indoctrination that uses deliberate lies to achieve an ideological purpose. Woodrow Wilson would give you a gold star.

Instead of taking the leftists' word for it, do some research of your own and discover the truth.

GeorgeLyon
GeorgeLyon

Adam.  You got the Illinois case wrong.  It did not strike down an Illinois ban on concealed weapons.  It struck down a ban on carrying firearms, open or concealed.  If it only banned concealed weapons and allowed open carry, it would be constitutional.  You need to have actually read the case, or at least your editor should have.

XiraArien1
XiraArien1

An armed society is a polite society.

iluv2skico2
iluv2skico2

Liberals at Time live in a Manhattan bubble.  No one in the gun rights community and even liberal legal scholars like Laurence H. Tribe see the truth that the author is too blind and insulated to see.

AlexanderVanArsdall
AlexanderVanArsdall

The author states that "In 2008, the Supreme Court overturned a lot of accepted wisdom about gun control when it ruled in District Columbia v. Heller that the Second Amendment creates an individual right to possess a firearm.  Until then, it was widely - if not universally - believed that the amendment was about raising "a well-regulated militia" - not about guarenteeing individuals the right to carry a gun."

Negative.  That was never "widely - if not universally - believed."  Amongst the anti-gun crowd, maybe, but that has never been a belief of the American populace as a whole.

BrandonWhite224
BrandonWhite224

@ChrisFitLoko @timeideas "keep and bear arms." You keep arms at home and bear them outside of it. Seems pretty clear to me.

JasonC
JasonC

The article speaks of "the right of the public not to be unduly exposed to the considerable dangers imposed by widespread availability of guns."  But there is no such right.  You are making it up. There is a long tradition of restrictions on *concealed* carry in the long past.  But none on restrictions on *open* carry, which was the norm of the right to *bear* arms (notice, not just a right to keep them at home) since the middle ages.  Concealment was considered a sign of evasion and attempted surprise and looked upon by ye old law as a sign of ill intent.More recent concealment is an attempt to accommodate a timid public's distrust of firearms - to avoid scaring the womenfolk and the liberals.  Gun rights activists have deliberately adopted concealed rather than open carry to meet such fears.  But this was a change from the long past - and legal traditions refer to that long past. By founding era norms, every free adult citizen can carry arms openly and no government can restrict his right to do so.  By those same norms, governments can restrict *concealed* carry, but not open carry. But by modern norms, open carry is more disruptive and confrontational than concealed carry. The law and the modern compromise conflict.  If the left presses its gun control aims to the point of attacking the right to carry at all, they are going to bring back open carry. Responsible gun owners would rather compromise on concealed carry.  But if governments are going to use their ability to regulate concealed to the point of banning carry at all, then gun rights activists are going to respond by forcing the resurrection of open carry.  And liberals will be the ones who brought it about.

tomrkba
tomrkba

"Until then, it was widely – if not universally – believed that the amendment was about raising “a well-regulated militia” – not about guaranteeing individuals the right to carry a gun."

 Snicker...you can continue to promote that idea but Americans know otherwise.  All the writer of this article had to do was to review some quotes from the Founding Fathers to understand the meaning of the Second Amendment.  Time magazine is only interested in promoting its agenda--history be damned.

DanielCooper
DanielCooper

Send a shock wave to Dianne Feinstein and the extreme left. Sign the petition to repeal Senate Bill SBX211. When the entire Los Angeles Superior Court Judges face felony charges for accepting money that was NOT authorized by law. That should put them back on their heels for a while.

Google SBX211 and sign the petition. COMPLETE MAINSTREAM MEDIA BLACKOUT, Please help telling others to sign.

karmapoet
karmapoet

@TIME @timeideas disgusting. What about those who dominate with these weapons - the psychotic, personality removed, police enforcers.

ImomosiUmolu
ImomosiUmolu

@TIME @TIMEIdeas #guns Hasthe first fight been fought and won yet?

MissaelOficial1
MissaelOficial1

@TIME----->¡¡¡RECOMENDANDO CUENTA!!!#CLICKENSEGUIR

caffine_cigs
caffine_cigs

by time cops show, its too late~ @TIME @TIMEIdeas

Dale Klčo
Dale Klčo

There is no rational conversation with irrational people. I can't get past one question, though. What is connection between Christians & guns? I am, absolutely, certain that, if Jesus were here today, he would not own a gun.

RipperMrsRipper
RipperMrsRipper

GunRightsAttorneys.Com  Pro 2nd Amendment Attorneys

Albert Gonzalez
Albert Gonzalez

Yes, seeing texans carry guns longer than my arm makes me feel safer

Ryan Bliss
Ryan Bliss

I'm not too worried about the people following the law. I'm sure a lot of folks ( where it's legal) carry concealed weapons legally and no one knows the difference. It's the crazy people who carry them without licenses that are worrisome. As for the legal folks one also needs to worry about how they store their guns and if they can get into the hands of the wrong people.

EusebioPreciado
EusebioPreciado

@PmshawjrYou obviously do not know the legal definition of the word "Militia" do you?  That's the problem with Americans.. they are SO IGNORANT of the laws, but yet have opinions for days on topics they do not understand.

"Militia" means any ABLE BODIED MAN, regardless of whether they are in the military or not..    So, next time instead of spewing your Ignorance, please research and understand what you are talking about before you talk and make yourself look foolish..

From DC v Heller:  (b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

BrendanG.
BrendanG.

@Pmshawjr Hope in one hand, sh!t in the other and see which one fills up the fastest. The Second Amendment is here to stay.

FWIW, Mexico has a near-total ban on civilian firearms ownership. Some "safe community" they are!

They DO have a problem with smuggled-in guns (mostly from China, and Chavez's Venezuela. You think America wouldn't have smuggled-in guns if you outlawed them? Then give me some of that stuff you're smoking, 'cause it must be some good sh!t indeed!

Hadrewsky
Hadrewsky

@Pmshawjr 


Might as well ask Uncle Sam for a lift to the moon... You have a better chance of getting that than coming anywhere near the 2nd amendment.... Keep in mind roughly 50%+ of the nation supports gun ownership - You dont even have a majority let alone the super-majority you would need!


Snowball's chance in Hell.

Garzhad
Garzhad

@Elvisfofana  

Evidence in Mexico and Russia says otherwise. It's not the availability of guns that reduces murder and crime. Its the culture and propensity for it's citizens to commit crime that does. The UK and other countries never had high crime rates to begin with. Neither did Japan, whose people have a long standing reputation for abiding the law and little interest in crime. Even if you gave the UK and Japan the equivalent of the US 2nd Amendment, their crime and murder rates would change little. In some cases, violent crime might even drop.

The UK ban barely changed anything because even Before the ban, you were more likely to meet someone who won the lottery then who owned a gun. Few owned them, and crime was low to begin with. Though, they have had mass shootings even After the ban was implemented. Lot of good that did.

DanParker
DanParker

@Elvisfofana 

Quite the opposite is true.  In the UK, for example, violent crime (including murders...and violent crimes involving firearms) skyrocketed following their imposition of draconian gun-control measures in the '90s.

Our violent crime rates, on the other hand, have been on a steady multi-decade decline since the '80s, even as firearms laws loosen in favor of Amendment II, and firearms ownership increases (including ownership of those scary, evil black rifles).

Perhaps you can cite some examples of strict weapons bans in Europe having this "immediate" effect of rudcing the numbers of casualties (or any crime for that matter).

BrendanG.
BrendanG.

If a total absence of guns (or other legal weapons) in a given population makes everyone safer...

Why are PRISONS so damned dangerous?

VietVet
VietVet

@SoSaltySoSauty

So will i

SoSaltySoSauty
SoSaltySoSauty

I don't see that most journalists are able to observe reality. Situational awareness and intellectual curiosity are nill.

bossmanham
bossmanham

@AlexanderVanArsdall Exactly. Well said. No one but libs anachronistically read "gun regulations" into the regulated militia clause. Most likely, well regulated does not mean constrained as we typically think of regulated, but rather as ready to go, or prepared. This is obvious from the fact that the Bill of Rights is a list of negative rights. It is limits on the government. Therefore, adding a regulatory power of the federal govt was the last thing on the minds of the founders upon writing this clause.

Furthermore, that interpretation makes no sense given the next section: "the right of the people to keep and bear arms shall not be infringed." That makes absolutely no sense if the first section appropriated powers of regulation to the feds.

In other words, gun regulation of any kind is unconstitutional.

SoSaltySoSauty
SoSaltySoSauty

That sums it up better than a Supreme Justice's written opinion.

JacksonBrim
JacksonBrim

@cerseilanisters @time @timeideas you have no idea how many people you come in contact with each day have a concealed carry

DanParker
DanParker

@Dale Klčo I don't know about that.  What I'm wondering is whether or not he could teach you to punctuate a sentence like a literate adult.

teebonicus
teebonicus

Heh-heh. As if He needed one.

Non sequitur.

tomrkba
tomrkba

@BrendanG.  Remember, Mexico solved its "gun violence" when they banned guns.  Everyone who is supposed to have guns has them.

tomrkba
tomrkba

@Pmshawjr 

50% of the country supports gun control only when you start making up the numbers.  

tomrkba
tomrkba

Furthermore, HOW murder rates in the US and UK are compiled are completely different.  The US bases the rate upon the preliminary investigation;  the UK computes it based upon convictions.  They are very different numbers that cannot be directly compared.  I am not certain about how the UK computes other crimes.