Constitution Daily

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Setting some limits on gun rights

January 15, 2013 by Lyle Denniston


Whatever awaits the Obama administration’s planned campaign to reduce gun violence across America, Second Amendment advocates are sure to bring lawsuits to challenge virtually anything that emerged from Congress, or from direct White House orders. The Supreme Court could be a major player in this, perhaps as early as its next term starting in October.

What the court might do could settle whether Second Amendment rights apply beyond the home--still an unsettled issue. If the court says no, or imposes new limits on public carrying of guns, that could well shape how successful new constitutional claims by gun rights advocates may be.   But an expansion of rights outside the home, even if it is a cautious expansion, would be a major breakthrough for gun rights activists, who have been seeking that in lawsuits across the country.

A group of New Yorkers, turned down in their requests for permits to “full carry” of pistols beyond their homes, have joined with the Second Amendment Foundation in asking the Supreme Court to clarify what the “right to keep and bear arms” means. Their new appeal posed this direct question: “Does the Second Amendment secure a right to carry handguns for self-defense outside the home?”

Under New York law, which is one of the strictest in the nation, an individual who seeks a “full carry” permit for a handgun must prove to a licensing official that they have “proper cause” to have a gun in public for self-defense. New York courts have interpreted that requirement to mean that the license applicant must show “a special need for self-protection” that is different in kind “from that of the general community.” In other words, there must be proof that the individual faces a special danger of attack for which a gun is needed in defense.

The Supreme Court in 2008 ruled that the Second Amendment protects an individual right to have a gun. That decision was limited, though, to a right to have a gun for self-defense in the home. Two years later, the court ruled that the personal right to a gun for that purpose extended to all state and local laws, as well as federal laws.

But the court so far has refused to be drawn into the spreading controversy among lower courts on whether the justices meant to confine the Second Amendment right to the home, and to self-defense there. The court, in fact, has turned down at least four test cases on that very issue within the past year.

What makes the newly filed case different, though, is that there is now a direct conflict among federal appeals courts on that open issue. In the case just taken to the Supreme Court, the Second U.S. Circuit Courts of Appeals in New York City upheld the state’s requirement of “proper cause” to carry a gun in public, and specifically endorsed the state legislature’s authority to put limits on public carrying of pistols.

That ruling directly contradicts a decision last month by the Seventh U.S. Circuit Court of Appeals in Chicago, interpreting the Supreme Court’s precedents as extending beyond the home, so that individuals have a Second Amendment right to carry a concealed firearm in public.

Each of those rulings, of course, only applies in the region of the country where the appeals court sits, but the fact that there is now a direct conflict at the appeals court level is usually a strong indication that the Supreme Court will step in to decide the issue. Until the Seventh Circuit had issued its decision, no federal appeals court had declared that the Second Amendment travels with a gun owner out into the public square.

The state of Illinois has recently asked the Chicago court to reconsider its decision, before all members of that circuit court. But that issue very likely will be resolved before the Second Amendment case is ready for action in the Supreme Court. It is too late in the justices’ current term for the New York case to be accepted and heard before the court recesses early next summer.

By next fall, the outlines of any new federal initiative may have begun to take shape, and challenging lawsuits may well be in full swing by then. Lower courts may move ahead with some of those cases, but the ultimate reckoning of what legislators and governors or presidents may do probably can only come from the Supreme Court.

At a minimum, the new case from New York could give the court a chance to say whether the Second Amendment will tolerate such a broad restriction, as that state’s “proper cause” requirement for a permit to carry a gun in public. The New Yorkers’ appeal argued that such a requirement reduces the Second Amendment to “uniquely lower status.”

The legal document argued: “It is difficult to imagine federal courts sustaining the denial of the right to speak, the right to worship or the right to terminate a pregnancy whenever the government asserts that these activities contravene the public interest, and thus may not be conducted absent an extraordinary ‘proper cause’.”

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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