No 2nd Amendment Right to Carry, As We Predicted

In January 2010, David Randolph Smith wrote a guest editorial in the Tennessean newspaper titled: “Americans Have No Right to Carry Guns in Public.”

David also wrote a law blog post explaining that there is no 2nd Amendment right to carry arms, since such a supposed right, even after the Supreme Court decision in the Heller case, has not been established or acknowledged by the Courts. In that January 2010 post, David argued:

“The Court in Heller did not decide whether the Second Amendment is a fundamental right or whether gun laws should be reviewed under “strict scrutiny” or “deferential review.” No constitutional “right to carry” arms in public has been established or acknowledged by the Courts. The Supreme Court may address this issue in McDonald. Until then people who say they have a “right to carry” under the Second Amendment are guessing. Any right to carry is presently permissive, subject to state and local laws and many states, counties and cities restrict or ban concealed or open carry or gun shows. Tennessee presently allows handgun permits and open or concealed carrying in state parks. Other cities, states and D.C. do not. The contours of the Second Amendment are in flux. Guns in the home are protected under the Second Amendment under the Heller case. But don’t jump your guns beyond that.”

On June 9, 2016 the Ninth Circuit Court of Appeals directly addressed this issue and held that there is no 2nd Amendment right to carry concealed firearms in public and that “concealed carry” may be banned by States or local governments. The case is Peruta v. Cty of San Diego. NBC News article here.

The lawyer who argued (and lost) the Peruta case was an attorney from Washington, D.C., Alan Gura. Mr. Gura had previously represented Dick Anthony Heller in the U.S. Supreme Court case, District of Columbia v. Heller.

On October 19, 2009, David had the opportunity to debate Mr. Gura at a CLE conference in Little Rock, Arkansas at the University of Arkansas at Little Rock William H. Bowen School of Law. The event was sponsored by the Arkansas Bar Association and the American Bar Association Governmental Practice Institute. The topic was the Constitutionality of Gun Laws & the Second Amendment. The two men got into a lively debate on the holding and meaning of the Supreme Court’s decision in Heller. David noted that, even after Heller was decided, the District of Columbia still banned concealed and open carry of handguns in public and that Heller merely decided that D.C.’s ban on handguns in a person’s home was unconstitutional and therefore States could prohibit carry of firearms.

David argued that even though Mr. Gura had handled the Heller case, Mr. Gura was misreading it. The Supreme Court’s decision did not preclude States or the District of Columbia from restricting or prohibited concealed or open carry of firearms in public, he argued. In effect, Heller had its own “Catch-22”: yes, the rule is the Second Amendment is not limited to militias and applies to individuals, but like Joseph Heller’s Catch-22, the catch is that States may regulate individual use and ownership of firearms (to wit-gun control).

Mr. Gura argued that that Heller held that that the “right to bear arms” encompasses the right to carry guns in public. David argued that he was expanding Heller well beyond its boundaries. The focus of Heller was not about “bearing” at all, let alone about public carrying—it was about banning weapons in the home. Now the 9th Circuit has settled the issue.

The implications of this new ruling could have broader impacts in terms of narrowing the 2nd Amendment’s reach. One issue could be mandatory insurance for permit holders. If you don’t have a 2nd Amendment right to carry, you don’t have a right to carry without having to buy insurance, either.

Given the 4-4 split in the U.S. Supreme Court, it is not likely that that the Ninth Circuit’s decision will be overturned.

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