Does the Second Amendment Apply Outside the Home?

· Wednesday, March 3, 2010

On Tuesday, the Supreme Court considered the question of whether the Second Amendment applies outside of jurisdictions controlled by the federal government. The court will almost certainly say yes, and soon it may consider a question that should be equally easy to answer: whether the Second Amendment applies outside of the home.

In 2008, the first time the Supreme Court explicitly declared that the Second Amendment protects an individual right to "keep and bear arms," it ruled that the District of Columbia's handgun ban violated that right. Since the Chicago handgun ban at issue in the case the Court heard this week is virtually identical, it will be overturned if the Court concludes that the Second Amendment binds states and cities as well as the federal government. And since the Court has ruled that almost all of the other guarantees in the Bill of Rights apply to the states by way of the 14th Amendment, it would be very strange if the fundamental right to armed self-defense did not make the cut.

Assuming the court strikes down Chicago's handgun ban, what other forms of gun control could be vulnerable? Since the Second Amendment protects the right to "bear" arms as well as the right to "keep" them, restrictions on carrying guns in public are a ripe target.

Forty-one states either do not require handgun carry permits or issue them to anyone who satisfies a few objective criteria, which generally include firearms training and lack of a criminal record. Seven states let local officials decide whether to issue permits, while Illinois, Wisconsin and Washington, D.C., do not allow even that option.

Last summer, Tom Palmer, one of the original plaintiffs in the D.C. gun-ban case, filed a federal lawsuit that challenges the District's prohibition on carrying guns in public. Palmer, a scholar at the Cato Institute, knows from personal experience that such restrictions can be deadly: He vividly recalls how brandishing a handgun on a Northern California street saved him from a group of thugs who shouted anti-gay slurs and threats at him on a summer night in 1982.

District officials predictably warn that chaos would ensue from allowing law-abiding people to carry guns in public. But that has not happened in any of the states with nondiscretionary carry permit policies.

Although the crime-reducing benefits of such policies remain controversial, the blood-soaked visions of doomsayers who imagined routine arguments regularly culminating in gunfire have not transpired in the two decades since Florida started the trend toward liberalization. In fact, data from Florida, Texas and Arkansas indicate that permit-holders are far less likely to commit gun crimes (or other offenses) than the general population.

The experiences of these jurisdictions show there is no safety benefit from prohibiting public carrying of guns that could possibly outweigh the Second Amendment interests at stake. Palmer and his co-plaintiffs concede that a city or state may bar guns from "sensitive places such as schools and government buildings" or regulate the manner in which they are carried -- policies that the Supreme Court called "presumptively lawful" in its 2008 decision. But they argue that the Second Amendment cannot reasonably be read to allow "a total ban on the exercise of the right to bear all arms, by all people, at all times, for all purposes."

The Supreme Court said a handgun ban is especially problematic when it extends to "the home, where the need for defense of self, family and property is most acute." But in his dissent, Justice John Paul Stevens worried that the D.C. ban "may well be just the first of an unknown number of dominoes to be knocked off the table," in light of "the reality that the need to defend oneself may suddenly arise in a host of locations outside the home."

For people like Tom Palmer who are intimately familiar with that reality, the falling of those dominos will be something to celebrate.

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Comments

J.David Beach, Sacramento

As an ardent amateur Constitutional and American History buff, I cannot begin to believe that the Second Amendment does not apply to me, an American citizen.

The Bill of Rights is meant to be a strong barrier, a wall of separation if you will, between me and the government, and was bequeathed to me by my Founding Fathers to protect me from the government.

I am confident in stating that anyone with a contrary opinion, either does not know the Founding Fathers or is Chucky Schumer, Barbara Boxer, or most any other democrat politicians.;)

Separation of person and state!

Posted March 3, 2010 at 1:56:52 AM


Michael

no it does not, because, the jurisdictions controlled by the federal government is only 10 square miles of land and the "FEDERAL GOVERNMENT" only has authority in that territory, The created CANNOT tell the creator what to do.

Unless you have surrendered your authority, then thats byour fault.

Posted March 3, 2010 at 7:39:16 AM


Marcus

Passing a law that would eliminate 2nd ammendment coverage and thus require the police to confiscate weapons from citizens would ultimately start a war and they know that. Plus, they know that citizens, along with the police are already at war with the criminal element, and an armed citizenry is a plus to the good side in that war.

It would be monumentally stupid of SCOTUS to do anything but uphold the 2nd.

the Bill of Rights should be changed to the Bill of Restrictions on Government. Saying we have rights administered by the government gives the government the mistaken notion that the "rights" are something they control.

Posted March 3, 2010 at 9:33:55 AM


terry goodwin

This

Govt. beleives we do not need Guns. If we are threatened all we have to do is call a Liberal and they will come and negotiate for you. They are afraid of an Armed Citizenery, because they do not have enough Military or Police to stop an Up-Rising. Want to buy a Gun and avoid Registering it? Buy from a Private Source. They can not Enforce a confisication program because the fact is, a Law is only valid if you abide by it! If the People of this Country decide to take up Arms, then there is no Law!

Posted March 3, 2010 at 11:04:16 AM


J.P.

Two points:

With the focus of the argument being self-protection from criminals, if there is a ban on guns, then all police should have to give up theirs too. After all, if no one can legally have a gun, then of course criminals won't have them. No reason for police to be armed then.

I think we are missing the correct argument. Our government doesn't care if criminals have guns. Only law-abiding citizens would ever band together to overthrow a government of tyrants. And THAT is a right of the people! For a politician it is simply a matter of self preservation.

Posted March 3, 2010 at 12:06:32 PM


JimInMT

"But in his dissent, Justice John Paul Stevens worried that the D.C. ban "may well be just the first of an unknown number of dominoes to be knocked off the table," in light of "the reality that the need to defend oneself may suddenly arise in a host of locations outside the home." "

Doesn't he KNOW, based on all FBI and other crime statistics, that MOST such crimes arise OUTSIDE the home!? What a dumb ASS.

Posted March 3, 2010 at 1:27:42 PM


Texan

Techically and historically the second amendment means that all "freemen" can be armed "in all places at all times". A review of "Dread Scott" proves this point. The biggest concern in making blacks whole citizens was that they could be armed everywhere they went.

If the second amendment is to mean what it says then the Fdederal Government, and by way of the 14th amendment, state and local government may not tax, regulate or register any guns or interfere with the wearing(bearing) of arms by honest citizens, period! As such there are no "reasonable" restrictionss on the second or any other amendment. The bill of rights is a giant "no trespassing" sign. It doesn't say they can trespass a little bit.

Posted March 3, 2010 at 1:37:52 PM


Jim Fishback

I love it Marcus,,,

"the Bill of Rights should be changed to the Bill of Restrictions on Government. Saying we have rights administered by the government gives the government the mistaken notion that the "rights" are something they control."

What a beautifully succinct way of placing focus on the Restrictions OF Government in the Bill of Rights.

Posted March 3, 2010 at 3:21:48 PM


TerryP

The second amendment was written by the founders to prohibit passing a law giving the government the right to confiscate firearms or prohibiting the other rights granted under our constitution and bill of rights.

Posted March 3, 2010 at 4:25:38 PM


Bill MEIERHOFER

Very often the Constitution is thought of as a list of what the govt is supposed to do for us when in fact it's a list of what the govt can't do to us. I believe the liberal socialist rat b--tards would like to see us unarmed so we wouldn't have the means to resist, and in time we would lose the will to resist. The 2nd Amendment says I have a right to keep and bear. It does not say at the discretion of my local or state govt.

Posted March 3, 2010 at 6:00:00 PM


KN

Bill MEIERHOFER: "Very often the Constitution is thought of as a list of what the govt is supposed to do for us when in fact it's a list of what the govt can't do to us."

I agree.

The Constitution is a document of NO.

Posted March 3, 2010 at 9:51:10 PM


terry goodwin

Follow the Constitution and you will always be Right. Live by it and you will prevail. Abide by it and you will not fear. If you must Arm yourself to protect your Liberity and Freedom. Give in to the abuses of it and you will perish. Live Free or Die.

Basic concepts of surviving in this Govt. controlled

environment. It should not have gotten this far. The voting booth is the bottom line in getting the Govt. back on the right course. Welcome November.

Posted March 4, 2010 at 10:31:50 AM


Ron

What part of " shall not be infringed" doesn't Daley or any other anti-constitutional tyrant understand? Maybe we should ban a politician's "right" to have mud slinging campiagn ads, or the " right" of the news media to only tell the side of the story the politicians want you to hear.

Posted March 4, 2010 at 7:21:29 PM


Jim Potter

RE: Terry Goodwin> First the voting booth, then ensure the elected ones adhere 100% or out the door ASAP.

Posted March 4, 2010 at 8:10:54 PM


MichaelSSEC

Some things that Americans MUST keep in mind whenever the 2nd amendment is discussed:

1) the Founders believed the right to bear arms was SO important, they put it SECOND in the Bill of Rights. Ahead of every other right, except Freedom of Speech and Religion. They knew the right to bear arms was the right that enabled all the others. The only reason they put free speech first was because they felt it was necessary to isolate it as the First Amendment, thus making it harder to weaken or even appeal. How could future generations meddle with a right so critical that it was the very first one? Well, how can we permit would-be tyrants to trample our right to defense if it's the very SECOND one?

2) When seconds count, the police are only minutes away. Examples abound of armed citizens saving their own lives by the timely application of firearms. Contrariwise, examples also abound of citizens dying horrible deaths while the police were on their way. It is no consolation that today's police force has state-of-the-art investigative techniques -- if you're dead.

3) the Liberal attitude is that guns cause crime, guns don't make anyone safer, and that guns actually endanger those who own them. Yet Liberals themselves often own guns. Ted Kennedy's bodyguard famously was caught some years ago with multiple firearms in his possession. Kennedy's office released a statement afterward, to the effect that Kennedy needed protection. Nobody doubts a Senator's need for protection, but Kennedy himself sought to deny that same protection to the citizen whose door is being kicked in by an intruder. Nor was Kennedy the only hypocrite; far from it. Liberals don't walk it like they talk it.

4) the main reason the Founders wanted to preserve our right to bear arms was specifically to enable us to overthrow future tyrants. We act today as though their Constitution was a prescient document in which the Founders had great confidence. Nothing could be farther from the truth. They had high HOPES but few illusions. "The tree of liberty must be watered from time to time with the blood of patriots." They believed it entirely possible -- some believed it entirely LIKELY -- that the government would only last a decade or two, perhaps less, before falling into some form of tyranny requiring the citizens to rise up in ARMED REBELLION to restore liberty. The Founders considered that one of the key protections built into the Constitution and if they could be said to have high hopes, surely those hopes rested mainly upon the 2nd amendment.

5) the Founders did something quite remarkable and wise, in declaring that our rights do not come from the government, but come instead from GOD. They were pessimistic regarding any rights given us by Men, since they believed correctly that if Men can give rights other Men can take them away later. But Divine rights would be a different matter. The Founders believed that the self-evident rights enumerated in the Constitution were the birth-right of every human being and could never be voided -- alienated -- by any assemblage of Men. Thus, if any future government tried to take away our Divine rights, the citizens would have, built into the Constitution, the MORAL AUTHORITY to rise up and dismantle that tyranny. It was a brilliant stroke.

Some commenters have expressed the opinion that if these radical Leftists currently ruining the country attempt to confiscate our firearms it will lead to a war are nearly correct. I honestly don't believe a war would be necessary. If the Obama administration (or any other) ever gave the order to confiscate our firearms, they would probably enlist our military in the execution of that order (there aren't enough police officers in the country to handle that job) because of the need to get it done quickly. Yet our military is comprised of our sons and daughters, husbands and wives, mothers and fathers, brothers and sisters -- and any Liberal who believes they will turn against the American people is deluding himself. I would give odds he would not live 10 minutes after issuing such a order, but arrest and trial are the minimum he would receive.

But I strongly doubt these radicals are so stupid as to be unaware that the overwhelming majority of our military are Conservatives. The order would never be given. So any assault on the 2nd amendment would have to be waged slowly in a slippery slope manner, as they are currently doing. The recent trend is to keep the right intact, but make using it virtually impossible through onerous registration processes, punitive taxes on ammunition, etc. What good is a right to keep and bear arms if the average person can't afford $2000/year for an FID card and pistol permit? That's why we must keep these court battles going to push back against the Leftists' creeping tyranny.

Posted March 5, 2010 at 7:09:55 PM


Kevin

Why do I fear my government? I am a proud Veteran. I am honest in my tax return. I do not participate in criminal/illegal activities. I have been scared of the unknown and startled by surprise, but I have never before experienced fear. I have faced overwhelming odds in which failure would have cost my life; however, I am still here because I had no fear. I have no fear of anything that bleeds. So Why do I fear my government? What's Next?? They issued me weapons, now I can't have them

Posted March 5, 2010 at 10:33:32 PM


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