By Eugene Volokh
Several recent court decisions have concluded that the Second Amendment doesn’t protect gun possession in public places, but only in the home.
I think that’s not correct, for reasons I discuss in PDF pp. 74–82 of this article; but today’s Commonwealth v. McCollum (Mass. App. Ct.), takes this even further, holding that the Second Amendment doesn’t apply even to possession of a gun at a friend’s — or, presumably, family member’s — home, apparently regardless of whether the resident has given permission:
The defendant argues that the incorporation of the Second Amendment right to keep and bear arms into the Fourteenth Amendment, accomplished by McDonald v. Chicago, 130 S.Ct. 3020 (2010), renders the statute for possession of ammunition without an FID card, under which the defendant was convicted, unconstitutional....
Assuming without deciding that Heller and McDonald apply to ammunition, an issue we need not reach, the Second Amendment does not protect the defendant in this case because the Commonwealth established at trial that apartment 12 was not the defendant’s home. Moreover, Heller and McDonald both expressly affirm the Commonwealth’s right to regulate in this area with, inter alia, appropriate licensing requirements. The defendant’s criminal history precluded his compliance with the Commonwealth’s valid licensing requirements. Accordingly, Heller and McDonald provide no basis for concluding that the defendant was unconstitutionally convicted of possession of ammunition without an FID card.
It may well be that the state should have prevailed on other grounds, for instance the defendant’s criminal history, or the possible use of the gun in relation to a drug transaction. But the court also independently held that “the Second Amendment does not protect the defendant in this case because the Commonwealth established at trial that apartment 12 was not the defendant’s home.” (The apartment was apparently “leased to [defendant’s daughter’s] mother, ... who was not present.”) And the court said nothing about whether the resident objected to McCollum’s having a gun there, which suggests that the court thought that irrelevant — the Second Amendment, according to the court, extends only to one’s home, and not to a place where one stays occasionally, or to a place where one is otherwise invited as a guest.
That strikes me as quite wrong. Whatever reason there might be for treating gun possession in public places as constitutionally unprotected, it seems to me that one should have as much right to be able to defend oneself at someone else’s home — assuming the resident permits this — as at one’s own home. And one should also be able to defend oneself by asking a friend to come with his gun, without making the friend a criminal in the process. Under the court’s view, if a girlfriend, mother, or daughter fears attack, and invites a boyfriend, son, or father to bring his gun to help her, the Second Amendment would offer no protection. I don’t think that’s a sensible way of interpreting the Second Amendment, or the Heller and McDonald opinions.
(I recognize, by the way, that bringing a gun to a friend’s home requires transporting it in public, but so does bringing a gun from a gun store to one’s own home, or from one’s own home to a target range or to a gun repair shop. Even if the Second Amendment doesn’t protect carrying a gun in a way that’s immediately accessible — again, not my view, but I set that aside for now — it must protect the transportation of a gun, perhaps locked and unloaded, in order to get it to where one can legally handle it.)