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.
New York state law generally bans carrying a handgun, openly or concealed, outside the home. Licenses are available to persons in certain occupations including judges and to merchants on their business premises. To obtain a license to carry a concealed handgun outside the home for purposes of self-defense, an ordinary citizen must show "proper cause." Kachalsky observed that "[t]his is the only license available to carry a concealed handgun 'without regard to employment or place of possession.'" To show "proper cause," the applicant must "demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." In other words, the vast majority of New Yorkers, by definition, are not allowed to obtain a license to carry handguns for self-defense. In Illinois, a license to carry a handgun for self-defense was not available to ordinary citizens at all.
A necessary step in the analysis in both Kachalsky and Moore/Shepard was to determine whether the individual Second Amendment right to self-defense recognized in Heller extends outside the home. The Second Circuit found Heller to be inscrutable on this point, and (quoting a Fourth Circuit case) referred to the scope of the right outside the home as a "vast 'terra incognita.'" However, the Second Circuit opined that Heller "suggests" that the right must have "some application" outside the home, and thus proceeded on this "assumption" without so holding.
The Seventh Circuit took a much more straightforward approach. In Moore/Shepard, Judge Posner observed that the "vast terra incognita" referred to by the other circuits "has been opened to judicial exploration by Heller and McDonald." Accordingly, the court analyzed the text of the Heller and McDonald opinions, and of the Second Amendment itself. The Seventh Circuit noted Heller's statement that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation," and added that "[c]onfrontations are not limited to the home." Further, in McDonald the Supreme Court characterized Heller as holding "the Second Amendment protects the right to keep and bear arms for the purpose of self-defense[.]" Noting that the Second Amendment right to "bear" arms is distinct from the right to "keep" arms, the Moore/Shepard court concluded that bearing arms is unlikely to refer to the home, and that "a right to bear arms thus implies a right to carry a loaded gun outside the home." Most importantly, it found that "[t]he Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside."
The Kachalsky and Moore/Shepard opinions also differed strikingly in the analytic framework used to determine whether the statutes at issue violated the Second Amendment. In Heller, the Court expressly rejected any "interest balancing" test. Instead, it categorically struck down the District of Columbia's handgun ban without applying any constitutional "level of scrutiny." Kachalsky nevertheless applied an interest-balancing test a weak form of intermediate scrutiny to New York's restrictive licensing scheme. The Kachalsky court limited itself to determining whether the "proper cause" requirement was "substantially related" to the state's interests in public safety and crime prevention. Yet the court required no empirical evidence to support the contention that drastic limitations on the right to carry for self-defense will prevent crime. It simply deferred to the legislature's "belief" 100 years ago when the statute was enacted that regulating handgun possession would have "an appreciable impact on public safety and crime prevention." Whether it has actually had that effect was not addressed by the court.
The Moore/Shepard court, on the other hand, explained that its "analysis is not based on degrees of scrutiny, but on Illinois's failure to justify the most restrictive gun law of any of the 50 states." The court examined a number of empirical studies and concluded that "the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law." The opinion noted that, in a prior case, United States v. Skoien, the Seventh Circuit en banc had required a "strong showing" by the government "that a gun ban [for domestic violence misdemeanants] was vital to public safety[.]" The state needed to make an even stronger showing to support the nearly complete ban on carrying because "here the gun rights of the entire law-abiding adult population of Illinois" have been curtailed.
Kachalsky and Moore/Shepard also differed substantially on the use of history to determine the extent of the right to carry outside the home. Kachalsky implied that laws in effect at the time of the nation's founding justify heavy restrictions on carrying. In fact, there were no laws at the time the Second Amendment was adopted that prohibited peaceable carrying of firearms, or required a license or permit to carry. Kachalsky emphasized that, in the late nineteenth century, four states at one time banned carrying pistols, both concealed and openly, but as Moore/Shepard observed, they no longer do. The laws in those few states were atypical and cases upholding them were decided at a time when the Second Amendment, like the rest of the Bill of Rights, was thought not to impose limits on state laws. Rather than undertaking its own historical analysis regarding the scope of the right, the Seventh Circuit relied on Heller noting that "we regard the historical issues as settled by Heller."
As mentioned above, several other cases dealing with the right to carry outside the home are pending in the US Courts of Appeals. In the Fourth Circuit, the case of Woollard v. Gallagher was argued and submitted on October 24, 2012. Woollard challenges Maryland's restrictive handgun permitting scheme which, with a few exceptions, prohibits carrying a handgun, concealed or openly, outside the home without a permit that is nearly impossible for the ordinary citizen to obtain. Maryland employs a test analogous to New York which requires that an applicant for a carry permit must demonstrate a "good and substantial reason" for obtaining the permit. Maryland interprets that requirement to mean that the applicant must show a danger to himself "greater than that of an ordinary citizen" and must support his application with "documented evidence of recent threats, robberies, and/or assaults, supported by official police reports or notarized statements from witnesses."
Three cases were argued before the same panel of the Ninth Circuit on December 6, 2012. Peruta v. City of San Diego [audio] and Richards v. Prieto challenge the highly restrictive application in two different counties of California's concealed handgun permit scheme. Baker v. Kealoha [audio] is a challenge to Hawaii's laws which prohibit the bearing of handguns for defense except upon issuance of a discretionary license. In Hawaii, a concealed carry license may be issued only in an "exceptional case" where the applicant "appears to be a suitable person" and in the opinion of the chief of police the applicant has shown "reason to fear injury to [his or her] person or property."
These cases, along with Kachalsky and Moore/Shepard, will trace the lineaments of the right to carry outside the home at the highest judicial level so far. In Moore/Shepard, a petition for rehearing en banc was filed on January 8, 2013, and a petition for certiorari was filed in Kachalsky on the same day. Whether these cases will provide the final word for their respective circuits in the near future, or whether the Supreme Court will hear one or more of these cases, will be known in a matter of months.
Dan Peterson received his J.D. from Harvard Law School and practices in Fairfax, Virginia. He is the author of approximately 60 articles on legal and other subjects, including many on firearms law.
Suggested citation: Dan Peterson, Appellate Courts Weigh In on Right to Carry Gun, JURIST - Sidebar, Jan. 29, 2013, http://jurist.org/sidebar/2013/01/dan-peterson-gun-control-overview.php
This article was prepared for publication by Michael Muha, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him/her at firstname.lastname@example.org