Constitution Daily

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Constitution Check: Is the right to have a gun gaining new protection?

March 8, 2012 by Lyle Denniston


This is another in a continuing series of posts in which Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: The expanding scope of the Second Amendment.

The statement at issue:

“This is a monumentally important decision. The federal district court has carefully spelled out the obvious, that the Second Amendment does not stop at one’s doorstep, but protects us wherever we have a right to be.”

-Alan M. Gottleib, executive vice president of the Second Amendment Foundation, in a public statement, March 5, commenting on a federal judge’s new ruling that the right to have a gun extends beyond one’s home.

We checked the Constitution, and…

Mr. Gottleib is certainly right that the ruling on March 2 by U.S. District Judge Benson Everett Legg of Balitmore was of major importance, although that decision did not decide something that was already “obvious,” and it did not extend as far as the Second Amendment Foundation had hoped in bringing the case (Woollard v. Sheridan).  Judge Legg said he had no choice but to reach a broad ruling–one that other courts, and, indeed, the U.S. Supreme Court itself, have not yet been ready to reach.

Of all the next-level questions that were stirred up by the Supreme Court’s rulings in 2008 and 2010–first recognizing a personal right to have a gun under the Second Amendment, and then extending that to gun control laws all across the Nation–the most significant was whether that right was available only within one’s home, or whether it reached at least some places in public.

The Court emphatically recognized the right as a part of the right of self-defense, but the right initially was found to exist only within a person’s private home, and the Court declined to say whether it might ultimately go further. The Court did say that states could limit access to guns in sensitive public places and to persons prone to violence.

Since those first rulings by the Justices, gun rights advocates–including the Second Amendment Foundation, a Bellevue, Wash., advocacy organization–have been suing in case after case, seeking to expand the right. So far, that effort has had only limited success. Three times within recent months, in fact, the Supreme Court has declined to hear cases seeking to extend the right beyond the home. In fact, one of the cases it bypassed involved the same Maryland state law that Judge Legg has now partially struck down. The fact that the Justices do not hear a particular issue, of course, does not bar lower court judges from facing it, when they feel they must, as Judge Legg did.

Maryland’s gun licensing law is frankly designed to reduce the number of guns circulating in society, so that law bars carrying a gun in a public place without a permit, and it puts fairly tight limits on who can get a permit. One of those limits requires a permit applicant to prove they have a “good and substantial reason” to have a gun, such as a fear of danger.

That restriction, Judge Legg concluded, goes too far. A law that burdens a constitutional right, by simply making it harder to exercise that right, he decided, is not closely enough related to public safety concerns to justify it. He thus invalidated that particular restriction. He did so using a more tolerant standard of constitutionality. The Second Amendment Foundation had wanted to have the ruling establish that any limit on gun possession outside the home had to satisfy the most rigorous constitutional test. The judge declined.

But the nullification of that one restriction in the law was not what was most significant about the ruling, and it was not unique: other courts have applied the same constitutional standard to gun laws.

But, in order to reach that provision and test its constitutionality, the judge wrote, he had to decide first whether the Second Amendment right is restricted to the privacy of one’s home. Since the Supreme Court has already made it clear that the personal right to have a gun definitely does exist within the home, then there would be no need to address a limitation on gun possession elsewhere unless the right went with the individual as he or she leaves home.

“The instant suit,” the opinion explained, “does require the court to determine whether Maryland’s broad restriction on handgun possession outside the home burdens any Second Amendment right at all.”

The judge began with the Supreme Court’s “historical understanding of the right to keep and bear arms as ‘an individual right protecting against both public and private violence.’ ” But, he added, the Court also had recognized that, besides protecting the right to have a gun for self-defense, the Supreme Court had also mentioned a right to have a gun for use in a militia (the modern National Guard is the same) or while hunting.

Since neither hunting nor militia training “is a household activity, and self-defense has to take place wherever a person happens to be,” the judge concluded, “the Second Amendment’s protection must extend beyond the home.”

It was a simple use of constitutional logic, but it did establish–at least for one judge–a considerably more expansive Second Amendment right than has so far been established generally. And Judge Legg has set the stage for higher courts to say whether they agree.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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