JURIST Guest Columnist Andrew Beshai, Loyola Law School Class of 2015, discusses California's new gun laws...
he gun rights discourse has occupied the media spotlight during the past several years owing to the horrific gun violence at Sandy Hook and, most recently, at the D.C. Naval Yard. On Friday, October 11, 2013, California Governor Jerry Brown signed
into law seven bills regulating various aspects of gun ownership in California. This has been the most recent development in the ongoing national debate over gun rights.
One aspect of the gun rights debate that was not addressed in the recent California legislative session is the ability to carry guns in public. Unfortunately, the media coverage on this issue has been rife with pundits deeply entrenched on polar ends of the political spectrum. Proponents of gun rights emphasize the need for self-defense and the long history and tradition of the Second Amendment. Opponents retort with arguments rooted in public safety and the negative effects of a pervasive "gun culture." Mirroring the divided rhetoric of media pundits, courts nationwide have posited divergent approaches regarding possession of guns in public.
The US Supreme Court addressed gun rights in the seminal case, District of Columbia v. Heller, where the major issue was whether the right to keep and bear arms was contingent on membership in a militia or whether it was a right that could be exercised individually. In reaching its decision, the court examined the historical and textual origins of the Second Amendment and held, "There seems to be no doubt on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms." However, while the Heller decision clarified the meaning of the Second Amendment to a certain extent, it also left questions unanswered. In the wake of the Heller decision, lower courts have struggled, often yielding conflicting opinions, to define how far the Second Amendment extends in the public sphere.
Some jurisdictions have interpreted the Heller decision to establish the right to bear arms only within the home, imposing restrictions on the right to bear arms in public. For example, the US Court of Appeals for the Second Circuit in Kachalsky v. County of Westchester upheld a New York law restricting the right to carry guns in public only to applicants who demonstrate "proper cause." In a similar vein, a California Appellate Court in People v. Yarbrough upheld a statute imposing a categorical ban on the carrying of concealed weapons in public.
Other jurisdictions, have construed the Heller decision as granting an absolute right to bear arms without restrictions in public. For instance, the US Court of Appeals for the Seventh Circuit in Moore v. Madigan held that an Illinois law placing a general ban on the carrying of guns in public was unconstitutional because the law undermines the policy of self-defense, which is not limited to the home. Echoing the Seventh Circuit, the United States District Court for the District of Maryland in Woollard v. Sheridan held that a statute restricting the right to carry guns in public to applicants who demonstrated "good and substantial reason" was unconstitutional.
These approaches range from an absolute restriction on possession of guns in public to an equally extreme approach that the right to bear arms extends absolutely to the public sphere. In between these two polarities there exists a reasonable middle ground - an appropriate statutory scheme that reconciles the right of self-defense with the interest of public safety.
One of the most important factors to consider when debating the right to carry weapons outside the home is public safety. A recent study by the American Medical Association has concluded that there is a strong correlation between the strength of a state's gun legislation and the number of firearm-related fatalities. There are conflicting reports claiming that allowing concealed-carry of weapons actually leads to a decrease in crime and that more gun laws do not lead to a reduction in gun crimes. However, these studies [PDF] only focus on the rate of crime and fail to consider that while the prevalence of guns in public may not increase crime, it does intensify the crimes that occur. Furthermore, there are studies [PDF] indicating that carrying guns in public is not an effective form of self-defense.
While there is a strong argument for restricting guns in public, any limitations must be balanced with the right of self-defense. The fundamental policy aim behind the Second Amendment is the inherent right of self-defense. This right cannot be fully realized if there is a categorical ban on the possession of guns in public. The court in Wollard stated that in order to effectively secure the rights of self-defense, the Second Amendment's protection must be extended beyond the home. This same notion was articulated by the court in Moore, which stated, "[T]o confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense."
Given the need for a balanced approach, a complete ban on gun possession in public would infringe on the citizen's Second Amendment rights whereas an absolute right to carry guns in public would jeopardize public safety. Instead, states like New York and Maryland have appropriate statutory schemes that limit public possession of guns to individuals who demonstrate a "proper cause" for carrying a gun in public. These statutes require "a showing of the need for self-defense distinguishable from the greater community." An individual must demonstrate a special need for self-defense based on an objective threat to her safety. The reason such a statutory scheme provides the perfect balance is because it preserves the right of self-defense to those individuals who show a need while protecting the public by limiting the number of concealed carry permits that are issued.
The debate over the scope of gun rights continues on, carried out over media outlets and within courtrooms across the US. What is needed most urgently is a rational middle ground that reconciles the need for self-defense with the countervailing interest of public safety. To that end, the best solution seems to be a statutory scheme that provides individuals who demonstrate "proper cause" the right to carry guns in public.
Andrew Beshai is a staff member of Loyola of Los Angeles Law Review
Suggested citation: Andrew Beshai, Guns in the Public Sphere: The Balance Between Self-Defense and Public Safety , JURIST - Dateline, Nov. 12, 2013, http://jurist.org/dateline/2013/11/andrew-beshai-gun-control.php.
This article was prepared for publication by Leigh Argentieri, a senior editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org