Constitution Check: Is the right to have a gun gaining new protection?

Lyle DennistonThis is another in a continuing series of posts in which Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Todays topic: The expanding scope of the Second Amendment.

This is a monumentally important decision. The federal district court has carefully spelled out the obvious, that the Second Amendment does not stop at ones doorstep, but protects us wherever we have a right to be.

-Alan M. Gottleib, executive vice president of the Second Amendment Foundation, in a public statement, March 5, commenting on a federal judges new ruling that the right to have a gun extends beyond ones home.

Mr. Gottleib is certainly right that the ruling on March 2 by U.S. District Judge Benson Everett Legg of Balitmore was of major importance, although that decision did not decide something that was already obvious, and it did not extend as far as the Second Amendment Foundation had hoped in bringing the case (Woollard v. Sheridan). Judge Legg said he had no choice but to reach a broad rulingone that other courts, and, indeed, the U.S. Supreme Court itself, have not yet been ready to reach.

Of all the next-level questions that were stirred up by the Supreme Courts rulings in 2008 and 2010first recognizing a personal right to have a gun under the Second Amendment, and then extending that to gun control laws all across the Nationthe most significant was whether that right was available only within ones home, or whether it reached at least some places in public.

The Court emphatically recognized the right as a part of the right of self-defense, but the right initially was found to exist only within a persons private home, and the Court declined to say whether it might ultimately go further. The Court did say that states could limit access to guns in sensitive public places and to persons prone to violence.

Since those first rulings by the Justices, gun rights advocatesincluding the Second Amendment Foundation, a Bellevue, Wash., advocacy organizationhave been suing in case after case, seeking to expand the right. So far, that effort has had only limited success. Three times within recent months, in fact, the Supreme Court has declined to hear cases seeking to extend the right beyond the home. In fact, one of the cases it bypassed involved the same Maryland state law that Judge Legg has now partially struck down. The fact that the Justices do not hear a particular issue, of course, does not bar lower court judges from facing it, when they feel they must, as Judge Legg did.

Marylands gun licensing law is frankly designed to reduce the number of guns circulating in society, so that law bars carrying a gun in a public place without a permit, and it puts fairly tight limits on who can get a permit. One of those limits requires a permit applicant to prove they have a good and substantial reason to have a gun, such as a fear of danger.

That restriction, Judge Legg concluded, goes too far. A law that burdens a constitutional right, by simply making it harder to exercise that right, he decided, is not closely enough related to public safety concerns to justify it. He thus invalidated that particular restriction. He did so using a more tolerant standard of constitutionality. The Second Amendment Foundation had wanted to have the ruling establish that any limit on gun possession outside the home had to satisfy the most rigorous constitutional test. The judge declined.

But the nullification of that one restriction in the law was not what was most significant about the ruling, and it was not unique: other courts have applied the same constitutional standard to gun laws.

Read the rest here:
Constitution Check: Is the right to have a gun gaining new protection?