The Next Gun Control Battle: A Right To Carry Firearms in Public?

By Adam Cohen 

March 04, 2013

Brendan Smialowski / Bloomberg / Getty Images

A sign is held up by a protestor outside the U.S. Supreme Court, which was hearing arguments in the gun possession case District of Columbia v. Heller, in Washington, D.C., U.S., on Tuesday, March 18, 2008.

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With all the battles going on over guns, now there is a new one: whether there is a constitutional right to carry a firearm in public. The Supreme Court has said the Second Amendment guarantees the right to have a gun at home, but it left open whether that right extends to the street. Last month, two powerful federal courts came down on opposite sides of the question. The issue will no doubt eventually land in the Supreme Court – and the stakes will be high.

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In 2008, the Supreme Court overturned a lot of accepted wisdom about gun control when it ruled in District Columbia v. Heller that the Second Amendment creates an individual right to possess a firearm. Until then, it was widely – if not universally – believed that the amendment was about raising “a well-regulated militia” – not about guaranteeing individuals the right to carry a gun.
Still, that 2008 ruling was essentially narrow: it struck down a Washington, D.C. law that banned possession of handguns in people’s homes. Heller was a huge victory for the gun-rights movement, but it was unclear how sweeping its impact would be. There has been a flurry of cases working through the legal system trying to see just how far the constitutional right to own a gun goes.
Late last month, the Denver-based U.S. Court of Appeals for the 10^th Circuit ruled that there is no Second Amendment right to carry a concealed weapon in public. A man who had been denied a concealed handgun license – because he was not a state resident – sued, insisting his constitutional rights had been violated. He said the denial had left him “completely disarmed” in public.
The court rejected the man’s claim. It said that all constitutional rights come with limitations – including the Second Amendment right to be armed. And it said that the Supreme Court in Heller had specifically noted that America has a long tradition of bans on concealed weapons – and of courts upholding them. Given all of this, the court concluded that there is no Second Amendment right to carry a concealed weapon in public.

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The same day, however, another federal appeals court came out the other way. The Chicago-based U.S. Court of Appeals for the 7^th Circuit declined to set aside a December ruling that the Second Amendment does protect people’s right to carry concealed weapons in public. (Confused yet?) The court struck down an Illinois state law banning concealed weapons. Judge Richard Posner, who wrote the decision, said, “The Supreme Court has decided” that the Second Amendment “confers a right to bear arms for self-defense, which is as important outside the home as inside.”  He added that a Chicago resident was “a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35^th floor of the Park Tower.”
But there’s a lot of grey area between a rough sidewalk and a luxury highrise. The Chicago court left opened the possibility that a narrower concealed weapons ban could be constitutional. The Illinois legislature is now working to come up with one, possibly a law that requires people to get training and a permit to carry a concealed weapon in public, and bans concealed weapons from schools, daycare centers, government offices, and other sensitive locations.
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The conflicting Denver and Chicago rulings underscore just how uncertain gun law is now. Does the Second Amendment simply confer a right to have a gun at home? Does it mean there is a right to have a gun in public – but that states can still ban concealed weapons? Does it prohibit complete bans on concealed weapons – but allow more narrowly drawn ones, such as a requirement that people get permits to carry concealed weapons? Or does it, as some gun-rights advocates believe, bar any restrictions on carrying guns – in home or on the street, in the open or concealed?
It is unlikely that Second Amendment law will end up in such an extreme position – and it should not. There are two kinds of rights involved in gun regulations: the right that the Supreme Court recognized in Heller to have a gun, and the right of the public not to be unduly exposed to the considerable dangers imposed by widespread availability of guns. It is one thing to say that there is a constitutional right to keep a gun at home for protection. It is quite another to say there is a constitutional right to bring a hidden gun into a daycare center. Even though the Supreme Court has expanded the Second Amendment, there is little reason to believe it will take it that far.