The Supreme Court is due 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 crux of the matter 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 home state of Virginia in June 1776, he suggested a clause that said “No free man shall be prohibited from the use of arms.”
In the second draft, he added in brackets: “[within his own lands or tenements]. “
Jefferson’s debate with himself grabs 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 objective 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 New York Rifle & Pistol Association v. Bruen want the court to overturn state restrictions and allow citizens who meet basic conditions, such as no criminal convictions, to carry concealed weapons.
Gun in the house
There are surprisingly few Supreme Court decisions 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 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 5-4 decision was extended 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, according to the ruling, “certainly elevates the right of law-abiding and responsible citizens to use arms in defense of their homes and homes above all other interests.” Washington, DC law designed to reduce crime cannot prohibit firearms in “the home, 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 main dissent was written 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 handgun at home that he can use for self-defense,” Breyer wrote, “then he has a handgun at home that he can use to kill himself or engage in violence. acts of domestic violence. “
Concealed Carrying Laws
State governments follow very different procedures to determine who will be allowed to carry a concealed firearm outside the home.
“Carrying open,” or simply having a handgun conspicuous 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. The “hidden port”, 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 port”, which means that the US Constitution itself is a license for a citizen to carry a firearm.
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 licensing. Applicants must demonstrate a “good cause” – such as being in imminent danger from a known source – which effectively eliminates ordinary applicants.
Regulation or eradication
The strongest argument in the gun owners’ submission to the Supreme Court concerns New York’s insistence that citizens have an exceptional or extraordinary need to exercise a right 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 opposing New York State Police brief is federalism – the long-held conservative argument that state legislators have wide latitude in determining their own regulations in order to serve as “experimentation laboratories,” as Judge Louis Brandeis put it in 1932. The federalist principle suggests that the court should defer to the judgment of state legislatures representing the needs of local citizens.
As a keen observer of the Supreme Court, I can imagine an outcome to the case in which the judges rule that under the Second Amendment a state can limit but not eliminate the fundamental objectives of the protected right.
The Heller judgment identifies at least one objective of self-defense. The question is whether a specific law on covert porterage creates such a heavy burden that it becomes equivalent to the eradication of the right to self-protection, or whether it imposes legitimate public security regulations that still uphold the fundamental right. for citizens who affirm it.
Individual vs citizen rights
The most permissive laws that allow unrestricted concealed porting are almost certainly not constitutionally mandated.
“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 an assistant professor of political science at the University of Massachusetts at Lowell,