right to carry

Appellate Courts Weigh In on Right to Carry Gun

by Dan Peterson, Jurist.com  |  published on January 31, 2013

The US Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago established that individuals have an enforceable Second Amendment right to possess firearms — including handguns — for self-defense, and that this right is protected against infringement by states and municipalities as well as the federal government.

The facts of Heller involved possession of a handgun within the home. Does the right to keep and bear arms extend outside the home? To many, merely asking that question seems preposterous. When the Second Amendment was adopted, the founding generation had just fought a war of independence using their own weapons, and it was fought not in their parlors but up and down a continent. Today, the need for a firearm for self-defense is as likely to arise on city streets as it is in our bedrooms.

Post-Heller, however, many state and federal courts have been gingerly in recognizing the constitutional right to bear arms, either openly or concealed, outside the home. Some, such as the Maryland Court of Appeals, have flatly stated that they will not recognize that the right applies outside the home until the Supreme Court says that it does. Now, the stage is set for this issue to be resolved, possibly by the Supreme Court, but certainly by some of the US appellate courts. The US Courts of Appeals for the Second and the Seventh Circuits recently have decided cases on this issue and more are in the pipeline, most notably in the US Courts of Appeals for the Fourth and Ninth Circuits.

In Kachalsky v. County of Westchester, decided on November 27, 2012, the Second Circuit grudgingly “assumed” the existence of a right to keep and bear arms outside the home. It nevertheless upheld New York’s highly restrictive licensing system, which prevents the vast majority of ordinary citizens from obtaining a license to carry a concealed handgun for self-defense outside the home.

Two weeks later, the Seventh Circuit decided the consolidated cases of Moore v. Madigan and Shepard v. Madigan. With “meager exceptions,” Illinois had banned the carrying of firearms outside the home. The Seventh Circuit invalidated that nearly complete prohibition, but stayed the mandate for 180 days to give the Illinois legislature time to enact laws that comport with the Constitution.

The judicial approaches taken in Kachalsky and Moore/Shepard are poles apart, and an analysis of several major points of difference is instructive. The principal difference is the degree to which the Second Circuit and the Seventh Circuit took to heart the Supreme Court’s precepts in Heller.

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