Supreme Court questions whether the right to keep a gun in the home applies to carrying guns in public

By Morgan Marietta, University of Massachusetts Lowell

The Supreme Court to hear arguments on November 3, 2021, on a clear question: Does the constitutional right to own a firearm extend outside the home? The answer can change gun regulations in many states.

The knot of the question in court is captured by a debate Thomas Jefferson had with himself at the time of the founding.

When Jefferson was drafting a constitution for his native state of Virginia in June 1776, he proposed a clause who said “No free man will ever be deprived of the use of arms.”

In the second draft, he added in brackets: “[within his own lands or tenements]. “

Jefferson’s debate with himself captures the question posed to the court: is the purpose of the right to “own and bear arms” the protection of a citizen’s “own lands”, or is it the purpose of the right to “own and bear arms” self-protection in general? Does the Second Amendment to the United States Constitution recognize the right to keep and carry guns in the home, or the right to “keep” firearms at home and “carry” them outside of the house for the protection of society?

The plaintiffs in the upcoming case New York Rifle & Pistol Association v. Bruen want the court to overturn state restrictions and allow citizens who meet basic requirements, such as no criminal convictions, to carry concealed weapons.

Gun in the house

There are surprisingly few Supreme Court rulings on the meaning of the second amendment.

The question of whether the amendment recognizes a fundamental right – on par with freedom of expression or the free exercise of religion – was not decided until 2008 in the landmark decision of District of Columbia v. Heller. For the first time, the court recognized a clear individual right to bear arms for the purpose of self-defense. This deeply contested decision 5-4 has been expanded two years later to cover state laws.

The Heller decision stated that Second Amendment law is like any other in the Bill of rights, which cannot be violated without the most compelling reasons. The amendment, says the ruling, “surely elevates above all other interests the right of law-abiding and responsible citizens to use weapons in defense of their homes and homes. Washington, DC law designed to reduce crime cannot ban firearms in “the House, where the need for self-defense, family and property is most acute.

This decision – written by Judge Antonin Scalia, who died in 2016 and replaced by Judge Neil Gorsuch – also recognized that “like most rights, the right guaranteed by the Second Amendment is not unlimited. Scalia cited regulations such as “long-standing bans on the possession of firearms by criminals and the mentally ill” or “bans on concealed carrying” as “presumed legal.”

The lead dissenter was drafted by Judge Stephen Breyer, the only dissenter in Heller still sitting in court. He stressed the balance between fundamental rights and public security needs.

“If a resident has a home handgun that he can use in self-defense, “Breyer wrote,” so he has a handgun at home that he can use to kill himself or engage in domestic violence. “

Men wearing New Black Panther Party and Fred Hampton Gun Club badges hold guns outside Capitol Square during a pro-gun rally in Richmond on Monday, January 18, 2021. (Ned Oliver / Virginia Mercury)

Concealed Carrying Laws

State governments follow very different procedures to determine who will be allowed to carry a concealed firearm outside the home.

Wear openOr simply having a handgun prominently in a belt holster or carrying a long gun (rifle or shotgun), is in fact legal in many places. The general idea is that open transport would only be carried out by an honest actor, so less regulation is needed. “Concealed carry”, having a weapon hidden in a pocket or under a jacket, is much more restricted.

At one end of the continuum are the virtual bans on so-called “concealed transport licenses,” while at the other end are states where no license is required. These laws are called “constitutional wear”, Which means that the Constitution of the United States itself is permit to wear gun.

Between these two positions are rules known as “will issue”, whereby the government issues a license if the applicant meets conditions such as no felony conviction, or “may issue,” which gives the government the right to issue a license. discretion to refuse a license based on perceptions of physical condition.

New York State has “may issue” laws with strict requirements, which in practice hardly allow the issuance of licenses. Applicants must

Regulation or eradication

The strongest argument in the remembrance of gun owners to the Supreme Court relates to New York’s insistence that citizens demonstrate an exceptional or extraordinary need to exercise a right that the court has recognized as fundamental.

No other fundamental right, such as freedom of expression or religion, is limited to people who can justify special circumstances. Instead, basic rights are meant to be held by ordinary people under ordinary circumstances.

The strongest argument in the brief opposite New York State Policing is federalism – the long-held conservative argument that state legislators have wide latitude in determining their own regulations to serve as “experimentation laboratories», As Judge Louis Brandeis the formula in 1932. The federalist principle suggests that the court should rely on the judgment of state legislatures representing the needs of local citizens.

Like a keen observer of the Supreme Court, I can imagine an outcome in which the judges decide that under the Second Amendment a state can limit but not eliminate the fundamental objectives of the protected right.

The Heller decision identifies at least one objective as self-defense. The question is whether a specific law on covert porterage creates such a heavy burden that it becomes tantamount to eradicating the right to self-protection, or whether it imposes legitimate public safety regulations that still uphold the fundamental right. for the citizens who affirm it.

Individual vs citizen rights

The most permissive laws that allow unrestricted concealed porting are almost certainly not constitutionally enforced.

“Shall issue” laws, which allow states to screen applicants for defects but require local governments to provide a concealed transport license to qualified citizens, are likely to be viewed even by conservative judges as legitimate regulations that do not create unconstitutional charges.

However, the current court might be likely to view a “may issue” law like New York’s, which allows the government to deny a license to nearly all applicants, as creating a burden that blocks the essentials of the right to claim. self-protection where citizens are exposed to the greatest threats – outside the home.

Dissenters will likely focus on Scalia’s invocation of the house as the pinnacle of defensive right, allowing restrictions outside his “own lands,” where individual rights are weighed against the interests of fellow citizens.

Morgan marietta is associate professor of political science at University of Massachusetts Lowell. This article is republished from The conversation under a Creative Commons license. Read it original article.

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