Court: 2nd Amendment Does Not Protect Carrying Guns

| by The Volokh Conspiracy

By Eugene Volokh

Here’s the opinion, handed down today, in Williams v. State. The court interprets Heller and McDonald as focused on home possession of guns, arguing that “it is clear that prohibition of firearms in the home was the

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gravamen of the certiorari questions in both Heller and McDonald and their answers. If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.”

I don’t think this analysis is right. First, Heller’s reasoning — which, even to the extent it goes outside the questions presented in the cases, ought to be taken seriously — strongly suggests that the Second Amendment does apply to carrying guns in public as well as to possessing in the home. Here’s an excerpt from my discussion of the matter, in my Implementing the Right to Keep and Bear Arms in Self-Defense article:

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Heller stated that bans on concealed carry of firearms are so traditionally recognized that they must be seen as constitutionally permissible....

The same cannot, however, be said about general bans on carrying firearms in public, which prohibit open as well as concealed carrying. Heller expressly concluded that “the right to ... bear arms” referred to carrying arms.... [M]any courts applying state constitutional [right to bear arms] provisions have held or suggested that carrying in public is generally constitutionally protected, though some courts have disagreed.

Such protection, of course, makes sense when the right is (at least in part) a right to keep and bear arms in self-defense: Often, people need to defend themselves against robbers, rapists, and killers outside and not just in the home. Two-thirds of all rapes and sexual assaults, for instance, happen outside the victim’s home, and half happen outside anyone’s home. The percentages are even greater for robberies and assaults. So a ban on carrying weapons outside the home — especially in places that one practically needs to frequent, such as the streets on the way to work or to buy groceries — is a serious burden on the right, more so than the ban on handgun possession struck down in Heller (which would have at least left open some possibility of self-defense with shotguns or rifles).

I should have also noted that Heller’s dictum accepting — as traditionally recognizing restrictions on Second Amendment rights — “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” strongly suggests that laws forbidding the carrying of firearms in other places do implicate the Second Amendment.

Second, even if Heller is read as simply holding that the Second Amendment protects home possession of guns, this simply means that whether the Second Amendment protects gun carrying is an open question. It seems to me that the court should have given a reasoned answer to that question; and it seems to me this court didn’t do that, other than by discussing some cases from other jurisdictions, which also didn’t offer a reasoned answer to that question. In our constitutional system, the definition of the scope of constitutional rights is not left simply to the Supreme Court. Lower courts may and must consider arguments for recognizing that a particular constitutional right makes unconstitutional a particular law, even if the Supreme Court has not yet so held (unless the Supreme Court has held the contrary, which it certainly hasn’t as to this issue).

The defendant is arguing that the right to “bear arms” includes carrying arms in public. Heller at least makes clear that this is a plausible position, even if that question was beyond the scope of the particular challenge involved in that case. (See D.C. v. Heller, starting with the text “At the time of the founding, as now, to ‘bear’ meant to ‘carry.’”) Why shouldn’t this position be accepted? The Maryland court decision does not, it seems to me, offer an answer to that question.