{"id":27401,"date":"2021-11-02T04:45:00","date_gmt":"2021-11-02T04:45:00","guid":{"rendered":"https:\/\/www.lifeandnews.com\/articles\/?p=27401"},"modified":"2021-11-03T15:41:13","modified_gmt":"2021-11-03T15:41:13","slug":"gun-rights-at-the-supreme-court-justices-will-consider-if-the-fundamental-right-to-keep-a-gun-at-home-applies-to-carrying-weapons-in-public","status":"publish","type":"post","link":"https:\/\/www.lifeandnews.com\/articles\/gun-rights-at-the-supreme-court-justices-will-consider-if-the-fundamental-right-to-keep-a-gun-at-home-applies-to-carrying-weapons-in-public\/","title":{"rendered":"Gun rights at the Supreme Court: Justices will consider if the fundamental right to keep a gun at home applies to carrying weapons in public"},"content":{"rendered":"\n

Morgan Marietta<\/a>, University of Massachusetts Lowell<\/a><\/em><\/p>\n\n\n\n

The Supreme Court is set to hear arguments Nov. 3<\/a>, 2021, on a clear question: Does the constitutional right to possess a gun extend outside the home? The answer may alter gun regulations in many states.<\/p>\n\n\n\n

The crux of the issue before the court<\/a> is captured by a debate that Thomas Jefferson had with himself at the time of the founding.<\/p>\n\n\n\n

When Jefferson was drafting a proposed constitution for his home state of Virginia in June 1776, he suggested a clause<\/a> that read \u201cNo freeman shall ever be debarred the use of arms.\u201d<\/p>\n\n\n\n

In the second draft, he added in brackets, \u201c[within his own lands or tenements].\u201d<\/p>\n\n\n\n

Jefferson\u2019s debate with himself captures the question posed to the court: Is the purpose of the right to \u201ckeep and bear arms\u201d the protection of a citizen\u2019s \u201cown lands,\u201d or is it self-protection in general? Does the Second Amendment to the U.S. Constitution recognize a right to keep and bear arms in the home, or a right to \u201ckeep\u201d firearms in the home and also \u201cbear\u201d them outside of the home for protection in society?<\/p>\n\n\n\n

The plaintiffs in the upcoming case New York Rifle & Pistol Association v. Bruen<\/a> want the court to strike down the state\u2019s restrictions and allow citizens who meet basic requirements, such as having no criminal convictions, to carry concealed weapons.<\/p>\n\n\n\n

\"A
Will an upcoming Supreme Court ruling loosen gun laws across the country? AP Photo\/Eric Gay<\/a><\/figcaption><\/figure>\n\n\n\n

Gun in the house<\/h2>\n\n\n\n

There are surprisingly few Supreme Court rulings<\/a> on the meaning of the Second Amendment.<\/p>\n\n\n\n

The question of whether the amendment recognizes a fundamental right \u2013 on par with free speech or free exercise of religion \u2013 was not decided until 2008 in the landmark ruling in District of Columbia v. Heller<\/a>. For the first time, the court recognized a clear individual right to bear arms for the purpose of self-defense. This deeply disputed 5-4 ruling<\/a> was expanded two years later to cover state laws<\/a>.<\/p>\n\n\n\n

The Heller ruling stated that the Second Amendment\u2019s right is like the others in the Bill of Rights<\/a>, which cannot be violated without the most compelling reasons. The amendment, the ruling says, \u201csurely elevates above all other interests<\/a> the right of law-abiding, responsible citizens to use arms in defense of hearth and home.\u201d The Washington, D.C., law intended to reduce crime cannot ban firearms in \u201cthe home<\/a>, where the need for defense of self, family, and property is most acute.\u201d<\/p>\n\n\n\n

That ruling \u2013 written by Justice Antonin Scalia, who died in 2016 and was replaced by Justice Neil Gorsuch<\/a> \u2013 also recognized that \u201clike most rights, the right secured by the Second Amendment is not unlimited<\/a>.\u201d Scalia cited regulations like \u201clongstanding prohibitions on the possession of firearms by felons and the mentally ill\u201d or \u201cprohibitions on carrying concealed weapons\u201d as \u201cpresumptively lawful.\u201d<\/p>\n\n\n\n

The principal dissent was written by Justice Stephen Breyer, the only dissenter in Heller still serving on the court. He emphasized the balance between core rights and the needs for public safety.<\/p>\n\n\n\n

\u201cIf a resident has a handgun in the home<\/a> that he can use for self-defense,\u201d wrote Breyer, \u201cthen he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence.\u201d<\/p>\n\n\n\n

Concealed carry laws<\/h2>\n\n\n\n

State governments follow very different procedures for determining who will be allowed to carry a concealed firearm outside of the home.<\/p>\n\n\n\n

\u201cOpen carry<\/a>,\u201d or just having a handgun in plain sight on a belt holster or carrying a long gun (rifle or shotgun), is actually legal in many places. The general idea is that carrying openly would be done only by an honest actor, so less regulation is needed. \u201cConcealed carry,\u201d having a hidden weapon in a pocket or under a jacket, is far more restricted.<\/p>\n\n\n\n

At one end of the continuum are near-bans on what are called \u201cconcealed carry licenses,\u201d while at the other end are states in which no license is needed. These laws are referred to as \u201cconstitutional carry<\/a>,\u201d meaning the U.S. Constitution itself is a citizen\u2019s license to carry<\/a> a firearm.<\/p>\n\n\n\n

In between these two positions are rules known as \u201cshall issue,\u201d whereby the government issues a license if the applicant meets the requirements such as having no felony convictions, or \u201cmay issue,\u201d which gives the government discretion to deny a license based on perceptions of fitness.<\/p>\n\n\n\n

New York state has \u201cmay issue\u201d laws with stringent requirements<\/a>, which in practice allow almost no licenses to be issued. Applicants must demonstrate a \u201cproper cause<\/a>\u201d \u2013 such as being in imminent danger from a known source \u2013 which effectively eliminates ordinary applicants.<\/p>\n\n\n\n

\"A<\/a>
The 2008 Heller ruling, written by Justice Antonin Scalia, pictured here, stated that the Second Amendment is a right like the others in the Bill of Rights. Chip Somodevilla\/Getty Images<\/a><\/figcaption><\/figure>\n\n\n\n

Regulation or eradication<\/h2>\n\n\n\n

The strongest argument in the gun owners\u2019 brief<\/a> to the Supreme Court relates to New York\u2019s insistence that citizens show an exceptional or extraordinary need to exercise a right that the court has recognized as fundamental.<\/p>\n\n\n\n

No other fundamental right, such as freedom of speech or religion, is limited to people who can demonstrate special circumstances. Instead, fundamental rights are understood to be held by ordinary people in ordinary circumstances.<\/p>\n\n\n\n

The strongest argument in the opposing brief<\/a> from the New York State Police is federalism \u2013 the longstanding conservative argument that state lawmakers hold wide latitude to determine their own regulations to serve as \u201claboratories of experimentation<\/a>,\u201d as Justice Louis Brandeis phrased it<\/a> in 1932. The federalist principle suggests that the court should defer to the judgment of state legislatures representing the needs of local citizens.<\/p>\n\n\n\n

As a close observer of the Supreme Court<\/a>, I can imagine an outcome to the case in which the justices rule that, under the Second Amendment, a state can limit but not eliminate the core purposes of the protected right.<\/p>\n\n\n\n

The Heller decision identifies at least one purpose as self-defense. The question is whether a specific concealed carry law creates a burden so strong that it becomes equivalent to eradication of the right to self-protection, or whether it imposes a legitimate public safety regulation that still maintains the core right for citizens who assert it.<\/p>\n\n\n\n

Individual rights vs. fellow citizens<\/h2>\n\n\n\n

The most permissive laws that allow unrestricted concealed carry are almost certainly not mandated by the Constitution.<\/p>\n\n\n\n

\u201cShall issue\u201d laws, which allow states to screen applicants for flaws but compel local governments to provide a concealed carry license to qualified citizens, are likely to be seen even by the conservative justices as legitimate regulations that do not create unconstitutional burdens.<\/p>\n\n\n\n

However, the current court might be likely to see a \u201cmay issue\u201d law like New York\u2019s, which allows the government to deny a license to nearly every applicant, as creating a burden that blocks the core of the right to self-protection where ordinary citizens are exposed to greater threats \u2013 outside the home.<\/p>\n\n\n\n

The dissenters will likely focus on Scalia\u2019s invocation of the home as the height of the defensive right, allowing for restrictions outside one\u2019s \u201cown lands,\u201d where individual rights are balanced against the interests of fellow citizens.<\/p>\n\n\n\n

[You\u2019re smart and curious about the world. So are The Conversation\u2019s authors and editors.<\/em> You can read us daily by subscribing to our newsletter<\/a>.]<\/p>\n\n\n\n

Morgan Marietta<\/a>, Associate Professor of Political Science, University of Massachusetts Lowell<\/a><\/em><\/p>\n\n\n\n

This article is republished from The Conversation<\/a> under a Creative Commons license. Read the original article<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Morgan Marietta, University of Massachusetts Lowell The Supreme Court is set to hear arguments Nov. 3, 2021, on a clear question: Does the constitutional right to possess a gun extend outside the home? The answer may alter gun regulations in many states. The crux of the issue before the court is captured by a debate […]<\/p>\n","protected":false},"author":44,"featured_media":27402,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[4,38],"tags":[8449,10746,4230,8707,3317,10747,4088,1666],"_links":{"self":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/27401"}],"collection":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/comments?post=27401"}],"version-history":[{"count":2,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/27401\/revisions"}],"predecessor-version":[{"id":27412,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/27401\/revisions\/27412"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media\/27402"}],"wp:attachment":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media?parent=27401"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/categories?post=27401"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/tags?post=27401"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}