Constitution Daily

Smart conversation from the National Constitution Center

How far from home do Second Amendment gun rights travel?

October 6, 2011 by Lyle Denniston


If the average gun-owner keeps a pistol or rifle at home, for self-defense in case of intruders, it is absolutely clear that the Constitution protects that.  But, if the gun-owner leaves home with the gun, for any purpose, does the Second Amendment “right to keep and bear arms” go along?  The answer: It depends on where he or she lives; laws differ from place to place, and the courts around the country are reaching differing conclusions about the reach of the Second Amendment.  So, of course, the Supreme Court is being asked to settle the issue.

Photo by Juan Pablo Yanez from Wikimedia Commons

The Second Amendment was put into the Constitution in 1791, and from then on, it was widely believed that it restricted only the power of the federal government, and it only guaranteed that the states’ militia (or, the modern equivalent, the National Guard) could be armed.   In more recent times, the issue was widely and hotly debated, and yet the Supreme Court declined to second-guess prevailing assumptions about the limits of constitutional gun rights.

All of that changed three years ago, when the Supreme Court by a vote of 5-4 struck down a total ban on pistols in Washington, D.C.   The ruling in the case of District of Columbia v. Heller was a sweeping victory for gun rights, making clear that the “right to keep and bear arms” was a personal right, not a community right only.  Still, since Washington, D.C., is a federal enclave, not an ordinary state or city, the decision only curbed national powers to regulate guns.

No single Supreme Court decision, or not two of them, can settle everything about a constitutional question.

Swiftly, gun rights advocates pressed for resolution of the most significant question left unanswered: What about state and local laws that regulate guns?  Does the Second Amendment apply to those, too?  Yes, it does, the Supreme Court ruled in 2010, again dividing 5-4, in the case of McDonald v. Chicago.

No single Supreme Court decision, or no two of them, can settle everything about a constitutional question, and that is true of the Heller and McDonald decisions.  The lower courts have only begun to sort out when, or whether, gun possession beyond the home may be limited by government at any level.   And one theme seems to be running through many of these lower court rulings: a cautious refusal to recognize a right to have a gun outside the home.

Teacher's corner

The boundaries of gun rights has been, and continues to be, a hot topic for deliberation. Use this thoughtfully prepared lesson plan by the National Constitution Center on gun rights, which outlines various positions and asks students to develop a viewpoint for discussion.

Obviously, lower courts would have the power to rule upon claims to gun rights in public places, since the Supreme Court has not decided that question.  And while the Supreme Court said that the Second Amendment right was a “fundamental” one, and that the right protected gun possession for “lawful purposes,” it also said that the right was not unlimited.  It even suggested that it was not disturbing such “reasonable restrictions” as bans on ownership of guns by convicted felons or mentally ill persons, or in “sensitive public places” such as schools.

Maryland’s highest state court, demonstrating the hesitancy that some lower courts have felt to go beyond the Heller or McDonald decisions, commented last January: “If the Supreme Court…meant its holding to extend beyond home possession, it will need to say so more plainly.”

As the Supreme Court opened its new term this week, it had on its docket three new cases, each of which could give it the opportunity to say "more plainly" just how far the Second Amendment reaches.  In its first reaction, it refused to review the Maryland case, despite the state court's implied invitation to say more.  In coming weeks, it is expected to consider the other two cases that remain; still more, of course, are sure to be filed.  Each will test whether the Justices, too, are going to be cautious about expanding gun rights in the near future.

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

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