District of Columbia v. Heller and McDonald v. Chicago made clear that the Second Amendment protects the right to keep and bear firearms in the home for self-defense, but left unanswered whether it protects other conduct. Writing for the majority in Heller, Scalia emphasized that Heller marked the Supreme Court’s first substantive exploration of the Second Amendment, and that determining the scope of conduct protected by the Amendment presented a challenge for future courts. McDonald added little more to the discussion. Presently, federal circuit courts are grappling with the reach of Second Amendment protections outside the home in the context of concealed-carry permits.

Generally, the divisive question is whether state laws or local ordinances requiring applicants for a concealed carry permit to provide evidence of specific threats against their person, rather than a general concern for self-defense, infringe on protected Second Amendment conduct. Several federal circuit courts found that laws requiring evidence of specific threats are constitutional under the Second Amendment. The US Court of Appeals for the Second Circuit in Kachalsky v. County of Westchester reviewed a challenge to the constitutionality of New York concealed carry permit law, which required that applicants demonstrate specific evidence of a need for self-protection. While the Second Circuit stated that the right to self-defense articulated in Heller had some application outside the home, New York’s law was a presumptively constitutional longstanding restriction and the permit requirement was not a complete ban on public carrying. Using a similar analysis, the US Court of Appeals for the Fourth Circuit upheld Maryland’s permit requirement in Maryland in Woollard v. Gallagher. The US Court of Appeals for the Third Circuit in Drake v. Filko found New Jersey’s permit requirement constitutional as a longstanding presumptively lawful measure, it offered a different analysis than the Second Circuit. For the Third Circuit, the proper question was not whether the Heller right existed outside the home, but whether a similar right could be said to exist in public. The Supreme Court denied certiorari for Drake in May 2014.

By contrast, some circuit courts found state or local permit laws requiring more evidence than a general concern for self-defense to be unconstitutional. Writing for the US Court of Appeals for the Seventh Circuit in Moore v. Madigan, Judge Posner found Illinois’ specific evidence of a threat requirement to be an unconstitutional burden on the Second Amendment. For Judge Posner, American history prior to ratification of the Second Amendment supported finding that the right to self-defense exists outside the home. The opinion critiqued opinions upholding such requirements as mistakenly interpreting the right to self-defense as a right tied to property instead of the person: “[i]t is not a property right – a right to kill a houseguest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell’s painting Santa with Elves.” The US Court of Appeals for the Ninth Circuit in Peruta v. County of San Diego held unconstitutional a San Diego county requirement for specific evidence after analyzing the history of the Second Amendment and the precedent established by Heller and McDonald.