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Published: 2012-12-17

The Second Amendment and the Right to Regulate Guns in Public



Sadly, we as a society are continuously reminded that the arguments on the extent to which we regulate guns do not exist solely in an esoteric vacuum. The policy and court decisions on this issue have real world consequences, as we all were so tragically reminded by the school shooting in Newtown, Connecticut on December 14, 2012.

According to one report, there have been six mass shootings in 2012, and a record number of casualties, with 110 people injured and killed prior to the incident at the Connecticut school.

The debate over gun rights and regulation will no doubt rage on, and this tragedy may serve as an impetus for further discussion and action.

Two recent court decisions published in the days and weeks before the school incident will be relevant to this discussion, although of course, whether or not they could or would have any affect on this incident is not known, and investigations continued into the facts of this particular case.

The opinions from the Second and Seventh Circuits center on whether certain limits imposed by state laws on carrying guns in public violate the Second Amendment.

The Second Amendment states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

U.S. Supreme Court Precedent: Limited to the Home

In District of Columbia v. Heller, 554 U.S. 570 (2008), the U.S. Supreme Court concluded that the Second Amendment codifies a pre-existing "individual right to possess and carry weapons in case of confrontation." The High Court therefore struck down a District of Columbia prohibition on the possession of usable firearms in the home because the law banned "the quintessential self-defense weapon" in the home.

Additionally, the Court noted that "[o]f course the right was not unlimited." Justice Scalia wrote, "Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose."

Heller's holding did not extend beyond an analysis of Second Amendment rights in the home, and did not purport to endanger certain state regulations of guns:

"Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

The Court also refrained from setting forth what it viewed to be the appropriate standard of review for laws that affects Second Amendment rights.

In 2010, two years after Heller, the Supreme Court held that the Second Amendment's protections, whatever their limits, apply to the states through the Fourteenth Amendment in McDonald v. City of Chicago, 130 S.Ct. 3020, 3026, 3042 (2010). In McDonald, the Court struck down a Chicago law that banned handguns in the home. However, it confirmed statements made in Heller that Second Amendment rights are not absolute and that many longstanding handgun regulations are "presumptively lawful." The Court also noted that the doctrine of "incorporation does not imperil every law regulating firearms."

Neither case fully defined what rights existed under the Second Amendment for persons to carry guns in public, and the ancillary question of to what extent states could regulate the same.

Second Circuit: Kachalsky v. County of Westchester Upholds Proper Cause Requirement for Concealed Carry Gun Licenses

On November 27, 2012, the Second Circuit Court of Appeals analyzed the following question: Does New York's handgun licensing scheme violate the Second Amendment by requiring an applicant to demonstrate "proper cause" to obtain a license to carry a concealed handgun in public?

In New York, gun licenses are limited to those over twenty-one years of age, of good moral character, without a history of crime or mental illness, and "concerning whom no good cause exists for the denial of the license." Most licenses are limited by place or profession. Licenses shall be issued to possess a registered handgun in the home or in a place of business by a merchant or storekeeper, and for a messenger employed by a banking institution or express company to carry a concealed handgun, as well as for certain state and city judges and those employed by a prison or jail.

The provision at issue stated that a license "shall be issued to have and carry a firearm concealed by any person when proper cause exists for the issuance thereof." This is the only license available to carry a concealed handgun without regard to employment or place of possession.

Thus, to carry a handgun in New York outside the home (and an employment classification does not apply), an applicant must demonstrate "proper cause."

To do so, an applicant must "demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession," said the Court.

Finding that Heller did not answer the question raised by this case, the Court concluded that the applicability of the Second Amendment gun rights in the home and outside the home would be different.

"Although the Supreme Court's cases applying the Second Amendment have arisen only in connection with prohibitions on the possession of firearms in the home, the Court's analysis suggests, as Justice Stevens' dissent in Heller and Defendants in this case before us acknowledge, that the Amendment must have some application in the very different context of the public possession of firearms."

The Court determined that "applying less than strict scrutiny when the regulation does not burden the 'core' protection of self-defense in the home makes eminent sense in this context and is in line with the approach taken by our sister circuits."

Thus, applying intermediate scrutiny, the Court found that "outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense. There is a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety."

The Court ultimately concluded that the proper cause requirement was "substantially related" to New York's "substantial, indeed compelling, governmental interests in public safety and crime prevention" and therefore the statute was constitutional.

Seventh Circuit: Moore v. Madigan Strikes Down Ban on Concealed Carry Guns

Just three days before the tragedy at the Connecticut school, on December 11, 2012, the Seventh Circuit issued an opinion holding that an Illinois law that banned carrying a gun in public violated the Second Amendment of the Constitution.

The Illinois statute banned carrying a gun ready to use (loaded, immediately accessible and uncased). There were exceptions in the law for police and other security personnel, hunters, and members of target shooting clubs, as well as exceptions for a person on his own property (owned or rented), or in his home (but not in the common areas of an apartment building), or in his fixed place of business, or on the property of someone who has permitted him to be there with a ready-to-use gun.

Noting that the U.S. Supreme Court did not decide whether there was a right of self-defense outside the home in the cases Heller and McDonald, Judge Posner found that the analysis in those cases rendered the Illinois law unconstitutional: "To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald."

"A blanket prohibition on carrying gun in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof it would."

"The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden."

The opinion notes the Second Circuit case and distinguishes it, stating that the New York law at issue was less restrictive than the Illinois law. Judge Posner does remark that he is at odds with the Second Circuit opinion as to some of its historical analysis, but also with its "suggestion that the Second Amendment should have much greater scope inside the home than outside simply because other provisions of the Constitution have been held to make that distinction."

Ultimately, the Seventh Circuit stayed its mandate for 180 days to allow the Illinois legislature "to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public."

Conclusion

Both courts appear to recognize that some regulation of gun laws will be upheld; it is the extent of the regulation that will be at issue, and whether the home and the public can be treated differently. How long it will be before this issue is addressed by the Supreme Court remains to be seen.

On a personal note, as a parent of young children, the tragedy of the events in Connecticut is my worst fear, as is probably the case for many. My hope is that by discussing the legal questions, thoughtful discussion may follow. Our hearts and prayers go out to the families and the Newtown community.