By Lyle Denniston
THE STATEMENT AT ISSUE:
There is “a growing line of court
of appeals decisions that, while stopping short of holding that there is
no Second Amendment right outside the home, consistently reach the same
result by deeming any right to bear arms in public to be, at best,
outside the Second Amendment’s ‘core’ and then balancing it away under
an anemic form of intermediate scrutiny.”
–
Charles J. Cooper, a Washington, D.C., attorney for the National Rifle
Association, in a brief filed at the Supreme Court on Monday, urging the
Justices to strike down a law that bans minors from carrying a handgun
in public, beyond the home.
WE CHECKED THE CONSTITUTION, AND…
The Second Amendment, at its core,
spells out not one, but two, rights when it protects “the right of the
people.” There is a right to “keep” a gun, there is a right, to “bear” a
gun. There is an “and” between the two in the text, so that might well
be taken as a significant indication that these are separate rights.
The Supreme Court in 2008 made it
clear that the right to “keep” a gun is a personal right, and that it
means one has a right to keep a functioning firearm for self-defense
within the home. But it has refused repeatedly since then to take on
the question of whether that right exists also outside the home. If
there is a separate right to “bear” a gun (and the Court, in fact, did
say in 2008 that the two rights were separate), it has not said what
that means.
The National Rifle Association,
and some of its members, are now pressing the Supreme Court to answer
that question. They are doing so in two cases testing whether the
federal government and the states can restrict the rights of minors to
possess a gun outside the home. The Court is expected to take its
first look at those cases later this month, to decide whether it will
hear either or both of them. The federal government, once again, is
urging the Court to bypass those cases, as it has done with perhaps a
half-dozen others seeking clarification of the Second Amendment’s scope.
In a case from Texas, the NRA’s
lawyers have reduced to elementary constitutional logic the question of
what a right to “bear” guns means: “The explicit guarantee of the right
to ‘bear’ arms would mean nothing,” the NRA’s filing argued, “if it did
not protect the right to ‘bear’ arms outside of the home, where the
Amendment already guarantees that they may be ‘kept.’ The most
fundamental canons of construction forbid any interpretation that would
discard this language as meaningless surplus.”
While the NRA and its lawyers are
sharply critical of the lower federal courts for failing to explicitly
extend the Second Amendment beyond the confines of one’s home, there
have been a couple of breakthrough decisions doing just that. For
example, the Seventh U.S. Circuit Court of Appeals based in Chicago did
so when it ruled unconstitutional an Illinois law banning the carrying
of guns in public, at least when that was for the purpose of
self-defense. That decision had seemed headed for the Supreme Court,
but the state legislature chose to eliminate the ban and the appeal
prospect vanished.
The lower courts that have
declined to enlarge the right have seemed to be convinced that it would
be a bold step to do so, and some have suggested that it should be up to
the Supreme Court to make the ultimate decision on that point. The
Court might be expected to step in to resolve the issue, if it were
convinced that there is actually a true split on it among lower courts.
In the new NRA cases now awaiting
the Justices’ attention, separate groups of judges on the Fifth U.S.
Circuit Court of Appeals, based in New Orleans, rejected NRA challenges
to the federal and state laws restricting minors’ access to guns. The
case involving the Texas law is explicitly about a right to carry a
handgun in public, at least for minors. In that state, they may own a
handgun, but without a license to carry it in public – for which they
are ineligible because of their age – they may have such a weapon only
at home.
One of the reasons why the
Justices might find the NRA challenges more appealing cases to review is
that, in both, the federal appeals court came very close to creating an
entirely new category of individuals ineligible to “bear” arms, merely
because of their age. In both of the decisions at issue, the appeals
court said it was “likely” that they were not protected at all under the
Second Amendment, or under the separate parts of the Constitution that
guarantee all individuals equal legal rights.
If the Justices do agree to
return to the ongoing controversy over the reach of the Second
Amendment, it is probably too late in the current term to add that to
the docket. If granted review, it would very likely go over to the next
term, starting in October.
Lyle
Denniston is the National Constitution Center’s adviser on
constitutional literacy. He has reported on the Supreme Court for 55
years, currently covering it for SCOTUSblog, an online clearinghouse of
information about the Supreme Court’s work.
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