Last we checked, the Second Amendment doesn’t limit the right to bear arms to a few select locations. Yet courts across the country have had trouble deciding where the right applies. The Firearms Policy Coalition is helping to fix the problem.
Recently, the FPC legal team filed an amicus brief in New York State Rifle and Pistol Association v. Corlett, asking the Supreme Court to hear a challenge to the State of New York’s oppressive restrictions on carrying firearms outside the home. New York law requires an individual to obtain a license before carrying outside the home. But as many New York residents can attest, this isn’t like getting a driver’s license. In order to acquire a license, a resident must show they have a special need to carry a firearm. And it isn’t enough to show a desire to protect one’s self, family, or community. Instead, the need must be distinguishable from such common desires. In short, ordinary citizens are excluded.
What follows is a short rundown of the substance of the FPC brief that will help lawful firearms owners better understand the stakes. The brief was authored by FPC’s Director of Constitutional Studies, Joseph Greenlee, and is the second brief FPC has filed with the Supreme Court in the last week.
- Federal Courts Divided
Federal Courts are divided into 13 regional circuits. Each circuit has jurisdiction over federal claims arising from states within each circuit. As you can imagine, getting twelve circuits to agree on anything is difficult. This is especially true of the right to keep and bear arms outside the home. The FPC brief, first and foremost, explains the split amongst the circuits on this issue. The split is not uniform and its contours expose a spectrum of holdings. The D.C. and Seventh Circuit hold the right to carry arms outside the home applies just as strongly as the right to keep arms inside the home, whereas the Ninth and Tenth Circuits hold the right does not protect concealed carry outside the home. The First and Second Circuits hold the right has some application outside the home, but in a weaker form, and the Third and Fourth Circuits have declined to make a determination on the issue.
- The Origin of the Split
So where does all the confusion come from? The answer is simple: the lower courts’ failure to faithfully apply Heller to Second Amendment issues. In 2008, the landmark decision District of Columbia v. Heller held the Second Amendment protects the right to keep and carry arms in case of confrontation. Two years later, in McDonald v. City of Chicago, the Supreme Court held the Second Amendment is applicable to the States through the Fourteenth Amendment. In the years since, the highest Court in the land has declined to further define the contours of Second Amendment rights. The FPC brief argues the Supreme Court should grant the petition and help clarify the extent to which the right to keep and bear arms applies outside the home.
- The Second Amendment is Not a Second-Class Right
As you well know, there are those amongst us who would see Americans stripped of their right to keep and bear arms, robbed of their unalienable right to defend self, family, and community from criminals and tyrants seeking to impose monoculture. James Madison wrote the Second Amendment and the States ratified it because it is the necessary freedom upon which all others are built. The Supreme Court made it clear in McDonald v. City of Chicago: the Second Amendment is not a “second-class right” to be “singled out for special – and specially unfavorable – treatment.” Unfortunately, other federal courts missed the memo. Courts routinely treat the Second Amendment as a second-class right. For example, the Tenth Circuit says the Second Amendment may be treated as inferior because of the inherent danger of firearms. The FPC brief argues the Supreme Court must intervene to reinforce their prior holding.
- A Universe of Issues
Whether Second Amendment protections extend beyond the home is not the only issue the FPC brief addresses. Indeed, an entire universe of issues has sprung from the Supreme Court’s unwillingness to define Second Amendment protections. To name a few:
- Can adults be denied the right to bear arms based on their age?
- Can a state deny nonresidents from owning a gun?
- Can firearms be prohibited in areas surrounding “sensitive spaces”?
- Can criminal activity be inferred merely from carrying a firearm in public?
All these issues and many more have perplexed lower courts. A solution to these issues will depend on how the Supreme Court defines the right to keep and bear arms. The FPC brief urges the Court to better define the right to keep and bear arms, to resolve these splits amongst the circuits and protect the fundamental rights of law-abiding citizens.
- Text as Informed by History and Tradition
Make no mistake, it’s not as if we have no opinion on the extent to which the Second Amendment protects the right to bear arms outside the home. The Second Amendment makes no such distinction. The text of the Second Amendment, informed by the history and tradition, makes clear that the right to keep and bear arms extends beyond the home. Moreover, the Heller decision highlights the original understanding of the text of the Second Amendment must be gleaned from the history and tradition of the right. Circuit courts are often unwilling to conduct an analysis of the history and tradition. For example, the Third Circuit in Drake v. Filko declined any historical analysis, “[a]t this time, we are not inclined to address this contention by engaging in a round of full-blown historical analysis.” As the Heller Court said, “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” A court cannot properly define the scope of a right without understanding the history and tradition of the text that protects the right. The FPC brief urges the Supreme Court to reinforce and clarify the role of history and tradition in defining Second Amendment protections.
As society further polarizes, it is crucial the Supreme Court protect and reinforce Second Amendment rights that benefit law-abiding citizens. The right to keep and bear arms outside the home is crucial to protecting all citizens, especially minorities whether political, racial, sexual, or religious. Now is not the time to bend to the mob. FPC is and will continue to be in the fight. We mean what we say: All the Rights, All the Time.
If you would like to read the full brief, a link is below. FPC depends on donations from law-abiding gun owners to fight for the rights of all Americans. Please consider donating at the link below.