Does the 2nd Amendment protect "right to bear arms" outside the home?

January 2, 2012

NRA will appeal yesterday’s decision by a federal court in Texas, which held that the Second Amendment doesn’t protect any right to keep or bear arms outside the home.

The decision, handed down by U.S. District Judge Sam Cummings of the Northern District of Texas, came in the case of Jennings v. McCraw, in which a group of law-abiding 18- to 20-year old adults challenged the state law prohibiting issuance of concealed handgun licenses to persons under 21, who are treated as adults for virtually every other purpose under the law. (NRA is also a party on behalf of its members in this age group.) Judge Cummings ruled that it was unnecessary to address the state’s discrimination against young adults because “the right to carry a handgun outside of the home … seems to be beyond the scope of the core Second Amendment concern articulated in Heller [v. District of Columbia].”

Unfortunately, this is only the most recent of several court decisions that have misread Heller in that way. Heller, of course, only directly addressed gun possession in the home, for a very simple reason: The plaintiffs in that case only challenged Washington, D.C.’s limits on possession in the home, rather than its restrictions on carrying firearms outside the home.

More importantly, the Supreme Court in Heller never said the Second Amendment doesn’t apply outside the home. Rather, it said that the home is the place “where the need for defense of self, family, and property is most acute”­implying that there are other places where the need may be less acute, but still exists. Likewise, the Court suggested that it would uphold bans on carrying guns in “sensitive places”­which implies that carrying in places that are not “sensitive” would be protected under the Second Amendment.

The NRA will appeal the Jennings decision to the U.S. Court of Appeals for the Fifth Circuit, and to the Supreme Court if necessary. Although the Supreme Court recently declined to hear two cases addressing the right to bear arms outside the home, several others are working their way through the courts. These include the NRA-supported cases of Peruta v. County of San Diego, which challenges discriminatory permit issuance under California law and Shepard v. Madigan, challenging Illinois’ complete denial of any lawful way to carry firearms for self-defense outside one’s home or place of business. Peruta is pending in the Ninth Circuit U.S. Court of Appeals and Shepard is awaiting action in the U.S. District Court for the Southern District of Illinois.

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