November 28, 2012
By: Mark Wachtler
Two separate cases, each arguing basically the same question, have been making their way through the American federal justice system. The cases involve a fundamental Constitutional question. Does the 2nd Amendment guarantee the right to keep and bear arms…outside the home? The first of two US Appeals Courts has just returned a verdict, and that verdict is no.
The 2 cases
One case is regarding a New York law and is in the 2nd US Circuit Court of Appeals in New York. The other case involves a Maryland law and is in the 4th US Circuit Court of Appeals in Richmond, Virginia. In each case, state legislatures enacted laws that restricted the right to carry concealed firearms outside of the gun owner’s home.
Maryland’s law
In the case of Maryland’s concealed carry restrictions, the US 4th Circuit Court of Appeals heard arguments last month over a state law that had already been struck down in federal court in March as un-Constitutional. The law required all Maryland residents wishing to obtain a concealed carry permit for their firearms to “verify threats occurring beyond their residence”.
The US Supreme Court ruled in 2008 that local gun control laws nationwide were un-Constitutional, illegally restricting Americans’ right to own firearms. Since then, cities like Chicago and Washington DC have fought to keep guns off their streets somehow.
But the loophole gun control advocates and Democratic-controlled state legislatures are taking advantage of is the part of the ruling that only guaranteed the right to keep and bear arms inside one’s own home. The case being argued never questioned the right to carry concealed weapons outside the home. Since then, states like New York and Maryland have passed laws forcing residents to prove they have more of a reason than the average citizen to carry a gun all the time.
Representing the state of Maryland and its ‘good and substantial reason’ restriction is the state’s Attorney General Douglas F. Gansler. In his written argument, he says, “Many assaults arise from disputes, and the presence of handguns greatly increases the likelihood that the disputes will become violent and deadly.”
Representing gun owners and arguing against the restrictions to Maryland’s concealed carry law is Alan Gura, lead attorney for the Second Amendment Foundation. “People have the right to carry weapons of self-defense,” the Washington Times quoted Gura arguing, “The state cannot require a special need or cause to do so. It is a right that is being regulated.”
Just as in the New York case, Gura and the pro-2nd Amendment attorneys are arguing that the government can’t restrict a right that is guaranteed by the US Constitution. They compared it to the state forcing citizens to fill out applications and show reasons why they’re in dire need of speaking, or desperate to read a newspaper.
Imagine if women, and only women, had to fill out a special application and prove why they should be allowed to exercise their right to vote each election day – with a large number of the applications being denied. “There’s no way we can apply such a restriction to the right to bear arms,” Gura said. Alan Gura and the Second Amendment Foundation aren’t alone either. Earlier this week, Kansas became the 14th state to officially join Gura in opposing the restrictive law before the court.
New York’s law
The case being argued before the 2nd US Circuit Court of Appeals in New York is basically the same as the case involving Maryland’s concealed carry law. Both states require citizens to prove they are at a greater risk than the general population before they will issue a concealed carry permit.
The Appeals Court in New York was the first to make a ruling, announcing yesterday that a unanimous 3-judge panel of the 2nd Circuit had upheld New York’s restrictive law. Just as in the Maryland case, the Second Amendment Foundation was the lead attorney representing gun owners. In this case, lawyers represented 5 individuals who were denied concealed carry permits in New York.
One of the individuals who was denied a permit came forward and argued that as a transgender female, she was more likely to be the victim of a hate crime. Other gun owners who were denied permits to carry concealed firearms took the opposite approach. They insisted that they were law abiding, employed, responsible homeowners and that was enough to justify their right to carry a weapon.
In all the cases, the state licensing officers denied their applications, and yesterday, the US Appeals Court agreed. Writing for the panel of judges, Judge Richard Wesley wrote, “Outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self defense.”
According to legal experts monitoring the two cases, they expect both sides to continue to appeal the rulings all the way to the US Supreme Court. It was there in 2008 that the high court struck down a Washington DC gun control law that made firearm bans across the country un-Constitutional.
For more information on the Second Amendment Foundation, visit their website at SAF.org.http://www.saf.org/
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