Ninth Circuit Court’s Peruta decision to make Hawaii a shall-issue concealed carry state

It seems the Ninth Circuit court’s Peruta decision will make Hawaii a shall-issue concealed carry state, as the ramifications of the February Peruta v. San Diego County decision continue to work their way through the lower courts. The District Court in Hawaii had previously rejected Christopher Baker’s complaint against state agencies that denied him a concealed carry license in Baker v. Kealoha. But following the Peruta decision, the Ninth Circuit court ordered the lower court to reexamine the case and hold “further proceedings consistent with Peruta.”

Christopher Baker had filed suit to legally carry, either openly or concealed, firearms in public. The District Court denied him, “concluding in part that Baker was not likely to establish that Hawaii’s restrictions on carrying firearms in public were unconstitutional under the Second Amendment, and therefore, Baker was not likely to succeed.” However, the Ninth Circuit disagreed when they ruled the Second Amendment does confer a right to bear arms outside the home in Peruta, and remanded the case back to the lower court. The Ninth Circuit said:

"we concluded that the Second Amendment provides a responsible, law-abiding citizen with a right to carry an operable handgun outside the home for the purpose of self-defense. In light of our holding in Peruta, the district court made an error of law when it concluded that the Hawaii statutes did not implicate protected Second Amendment activity. Accordingly, we vacate the district court’s decision denying Baker’s motion for a preliminary injunction and remand for further proceedings consistent with Peruta."

There are still formalities that must occur before Hawaii’s law is removed, but it appears it is only a matter of time before Hawaii will become the latest state to recognize that the Second Amendment allows lawful carry of firearms outside of the home. Court time is not necessarily speedy. As Eugene Volokh, of The Volokh Conspiracy, wrote in the Washington Post:

"[T]he writing is on the wall. Of course, if the Ninth Circuit agrees to rehear Peruta en banc and then reverses it, or if the U.S. Supreme Court agrees to hear Peruta and then reverses it, then the foundation for the Baker decision will be reversed, too. And if the defendants in Baker petition the Ninth Circuit for rehearing or the U.S. Supreme Court for certiorari (and get a stay of the Ninth Circuit’s judgment in the meantime), then the Baker decision won’t have to be implemented until all those proceedings are over. So there’s still a ways to go, I suspect, before Hawaii goes “shall-issue,” so that any law-abiding adult can get a license to carry concealed."

However, as Brenner Brief had reported previously, the Ninth Circuit ruled the right to keep and bear arms is, in and of itself, a sufficient cause for bearing arms for self-defense both inside and outside of the home. Judge O’Scannlain’s majority opinion emphasized “the right to bear arms includes the right to carry an operable arm outside the home for the lawful purpose of self-defense.” The courts said the Second Amendment must be read as including “the right to carry weapons outside the home” because “the risk of armed confrontation” is in no way limited to one’s home.

The Peruta decision is based on several Supreme Court decisions, primarily D.C v. Heller and McDonald v. Chicago. The Supreme Court ruled in Heller, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” As this author has previously written, the ruling says “for lawful purposes” – plural – “such as self-defense within the home”, meaning self-defense within the home is one of several lawful purposes. The Court explicitly mentions several other lawful purposes in Heller that do not logically restrict the Second Amendment to the home, including hunting, resisting tyranny from government, repelling an invasion, and suppressing an insurrection. Heller also reaffirms the court’s prior definition of “bear arms” in Muscarello v. United States that “surely a most familiar meaning is, as the Constitution’s Second Amendment indicates: wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.” McDonald held that the Second Amendment rights applied to the states via the Due Process clause of the Fourteenth Amendment. Based on these decisions, the Ninth Circuit found: “people are more sensibly said to ‘bear Arms’ in nondomestic settings… self-defense, recognized since ancient times as a ‘basic right’, is the central component of the Second Amendment… consequently, that right restricted not only the Federal government but under the Fourteenth Amendment, also the states.”

If the lower court sends Baker back to the Ninth Circuit, or if it ends up before the Supreme Court, it seems likely either court will rule based on the precedent set in these landmark cases. The lower court may simply reverse its decision based on the Ninth Circuit’s Peruta decision. It seems inevitable though that Hawaii will eventually have to concede the point and rule in favor of allowing lawful carry of firearms in public.

By Matt MacBradaigh. Matt is a Christian, Husband, Father, Patriot, and Conservative from the Pacific Northwest. Matt writes about the Second Amendment, Gun Control, Gun Rights, and Gun Policy issues and is published on The Bell Towers, The Brenner Brief, PolicyMic. TavernKeepers, and Vocativ.

Follow Me on Twitter: https://twitter.com/2AFight  

Follow Me on Facebook:   https://www.facebook.com/2ndAmendmentFight
 

This article also appears on The Brenner Brief. (Original publication April 16, 2014).

CHICAGO, Ill., April 10 – Chicago’s murder rate dropped to its lowest level since 1958, following the adoption of a concealed carry gun law by Illinois last year. Chicago had some of the toughest gun laws in the nation, and in 2012, Chicago led the nation in murders. But the courts said the tough gun laws violated the Second Amendment, and Illinois was forced to adopt a law allowing concealed carry. Chicago police began accepting applications in January of this year. Anti-gun critics predicted an increase in crime, murder and mayhem. Now Chicago police are reporting the lowest level of crime and murder in decades.


When Illinois passed the law allowing law-abiding citizens to carry concealed hangduns, it became the last state in the Union to do so. The Supreme Court ruled in McDonald v. Chicago that the right of an individual to “keep and bear arms” protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. Then the 7th Circuit Court of Appeals ordered Illinois to repeal its law that prohibited concealed carry and gave the state until July 9, 2013 to replace it.

Anti-gun zealots predicted mayhem, warning that high-crime areas, like Chicago, would only see more violence if residents were allowed to carry guns in public. Governor Quinn called the concealed carry bill “extremely disappointing,” saying it “will lead to tragedy” and that “public safety should never be compromised or negotiated away.” He accused the legislature of “surrender[ing]” to the NRA. But the opposite occurred–instead of crime and murder rising, it has decreased.

Chicago has had a significant problem with murder and gun crime. According to the FBI, the U.S. had a national homicide rate of 4.7 per 100,000 people in 2011. Illinois’ homicide rate in 2011 was 6.4 per 100,000, or 136 percent of the national rate. And though during that time it was illegal to carry them, handguns were involved with the vast majority of murders. In 2012, Chicago led the nation with 506 murders. Gun control, evidently, was not working out very well.

However, in the first three months of 2014, Chicago saw six fewer murders than the same time frame in 2013–a nine percent drop–and 55 fewer murders than 2012, making it the lowest first-quarter murder total since 1958. There were 90 fewer shootings and 119 fewer shooting victims, drops of 26 and 29 percent respectively. Compared to the first quarter of 2012, there have been 222 fewer shootings and 292 fewer shooting victims. Overall crime is down 25 percent from last year.

The drop is consistent with academic research that, contrary to gun bullies’ claims, clearly shows that lawful carry of guns by law-abiding citizens reduces and deters crime. It is more guns that leads to more safety, not the other way around. Though this may seem counterintuitive, the findings are confirmed by multiple academic sources. A CDC study ordered by President Obama found lawful carrying of guns was an important deterrent to crime. The CDC study further states that lawful carrying of guns saves lives, noting, “Studies that directly assessed the effect of actual defensive uses of guns (i.e., incidents in which a gun was ‘used’ by the crime victim in the sense of attacking or threatening an offender) have found consistently lower injury rates among gun-using crime victims compared with victims who used other self-protective strategies.” Research by gun crime experts John Lott, Jr. and David Mustard found that “When state concealed handgun laws went into effect… murders fell by 8.5 percent, and rapes and aggravated assaults fell by five and seven percent.” They state that “more guns mean less crime.”

A Harvard Journal of Law and Public Policy study by professors Don Kates and Gary Mauser of 36 developed nations–virtually all of which have stronger gun control than the United States–concludes that higher gun control is consistently associated with higher levels of violent crime and homicide, and low gun restrictions are associated with lower levels of violent crime and less murder. They note, “Whether viewed as a cause or coincidental, the long-term macrocosmic evidence is that gun ownership spread widely throughout societies consistently correlate with stable or declining murder rates” (p.673).

They further state, “Laws whose effect is to reduce gun ownership by law-abiding citizens–the ones who obey gun laws–are futile because these laws do not reduce violence or murder” (p.672). Professors Kates and Mauser state it is a criminologist axiom, verified in virtually every study since at least the 1890s, that average, law-abiding people do not commit murder. Instead, they state that career criminals do: 90 percent of adult murderers have adult criminal records, with multiple prior contacts to the justice system. The same is true with minor offenders. Professors Kates and Mauser state that “there is no reason for laws prohibiting gun possession by ordinary, law-abiding responsible adults, because such people virtually never murder… disarming them becomes not just unproductive, but counter-productive” (p. 670). Laws intended to prevent crime by keeping all citizens from having guns are useless because crime is committed by criminals with history of doing so. Criminals simply do not obey gun laws, as Chicago demonstrates.

Chicago Mayor Rahm Emanuel and Chicago’s police chief credit the drop with changes in police strategies, and do not support the new concealed carry law. Honest researchers will rightly tell us correlation does not equal causation–something anti-gun zealots only seem to remember when it benefits their agenda to do so. However, while we may not rightly say Chicago’s decrease in crime is solely attributable to concealed carry, we can say that concealed carry has not resulted in the increase of crime that the anti-gun rights lobby wrongly predicted. The decrease in crime observed in Chicago is consistent with - and to be expected considering  - academic research that clearly shows that lawful gun carrying reduces crime.

By Matt MacBradaigh. Matt is a Christian, Husband, Father, Patriot, and Conservative from the Pacific Northwest. Matt writes about the Second Amendment, Gun Control, Gun Rights, and Gun Policy issues and is published on The Bell Towers, The Brenner Brief, PolicyMic. TavernKeepers, and Vocativ.

Follow Me on Twitter: https://twitter.com/2AFight  

Follow Me on Facebook:   https://www.facebook.com/2ndAmendmentFight
 

This article also appears on The Brenner Brief. (Original publication April 10, 2014).

Chicago’s murder rate drops to lowest level in decades following new concealed carry gun law

by Matt MacBradaigh | Apr 10, 2014 | Gun Control Facts | 0 comments

CHICAGO, Ill., April 10 – Chicago’s murder rate dropped to its lowest level since 1958, following the adoption of a concealed carry gun law by Illinois last year. Chicago had some of the toughest gun laws in the nation, and in 2012, Chicago led the nation in murders. But the courts said the tough gun laws violated the Second Amendment, and Illinois was forced to adopt a law allowing concealed carry. Chicago police began accepting applications in January of this year. Anti-gun critics predicted an increase in crime, murder and mayhem. Now Chicago police are reporting the lowest level of crime and murder in decades.

When Illinois passed the law allowing law-abiding citizens to carry concealed hangduns, it became the last state in the Union to do so. The Supreme Court ruled in McDonald v. Chicago that the right of an individual to “keep and bear arms” protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. Then the 7th Circuit Court of Appeals ordered Illinois to repeal its law that prohibited concealed carry and gave the state until July 9, 2013 to replace it.

Anti-gun zealots predicted mayhem, warning that high-crime areas, like Chicago, would only see more violence if residents were allowed to carry guns in public. Governor Quinn called the concealed carry bill “extremely disappointing,” saying it “will lead to tragedy” and that “public safety should never be compromised or negotiated away.” He accused the legislature of “surrender[ing]” to the NRA. But the opposite occurred–instead of crime and murder rising, it has decreased.

Chicago has had a significant problem with murder and gun crime. According to the FBI, the U.S. had a national homicide rate of 4.7 per 100,000 people in 2011. Illinois’ homicide rate in 2011 was 6.4 per 100,000, or 136 percent of the national rate. And though during that time it was illegal to carry them, handguns were involved with the vast majority of murders. In 2012, Chicago led the nation with 506 murders. Gun control, evidently, was not working out very well.

However, in the first three months of 2014, Chicago saw six fewer murders than the same time frame in 2013–a nine percent drop–and 55 fewer murders than 2012, making it the lowest first-quarter murder total since 1958. There were 90 fewer shootings and 119 fewer shooting victims, drops of 26 and 29 percent respectively. Compared to the first quarter of 2012, there have been 222 fewer shootings and 292 fewer shooting victims. Overall crime is down 25 percent from last year.

The drop is consistent with academic research that, contrary to gun bullies’ claims, clearly shows that lawful carry of guns by law-abiding citizens reduces and deters crime. It is more guns that leads to more safety, not the other way around. Though this may seem counterintuitive, the findings are confirmed by multiple academic sources. A CDC study ordered by President Obama found lawful carrying of guns was an important deterrent to crime. The CDC study further states that lawful carrying of guns saves lives, noting, “Studies that directly assessed the effect of actual defensive uses of guns (i.e., incidents in which a gun was ‘used’ by the crime victim in the sense of attacking or threatening an offender) have found consistently lower injury rates among gun-using crime victims compared with victims who used other self-protective strategies.” Research by gun crime experts John Lott, Jr. and David Mustard found that “When state concealed handgun laws went into effect… murders fell by 8.5 percent, and rapes and aggravated assaults fell by five and seven percent.” They state that “more guns mean less crime.”

A Harvard Journal of Law and Public Policy study by professors Don Kates and Gary Mauser of 36 developed nations–virtually all of which have stronger gun control than the United States–concludes that higher gun control is consistently associated with higher levels of violent crime and homicide, and low gun restrictions are associated with lower levels of violent crime and less murder. They note, “Whether viewed as a cause or coincidental, the long-term macrocosmic evidence is that gun ownership spread widely throughout societies consistently correlate with stable or declining murder rates” (p.673).

They further state, “Laws whose effect is to reduce gun ownership by law-abiding citizens–the ones who obey gun laws–are futile because these laws do not reduce violence or murder” (p.672). Professors Kates and Mauser state it is a criminologist axiom, verified in virtually every study since at least the 1890s, that average, law-abiding people do not commit murder. Instead, they state that career criminals do: 90 percent of adult murderers have adult criminal records, with multiple prior contacts to the justice system. The same is true with minor offenders. Professors Kates and Mauser state that “there is no reason for laws prohibiting gun possession by ordinary, law-abiding responsible adults, because such people virtually never murder… disarming them becomes not just unproductive, but counter-productive” (p. 670). Laws intended to prevent crime by keeping all citizens from having guns are useless because crime is committed by criminals with history of doing so. Criminals simply do not obey gun laws, as Chicago demonstrates.

Chicago Mayor Rahm Emanuel and Chicago’s police chief credit the drop with changes in police strategies, and do not support the new concealed carry law. Honest researchers will rightly tell us correlation does not equal causation–something anti-gun zealots only seem to remember when it benefits their agenda to do so. However, while we may not rightly say Chicago’s decrease in crime is solely attributable to concealed carry, we can say that concealed carry has not resulted in the increase of crime that the anti-gun rights lobby wrongly predicted. The decrease in crime observed in Chicago is consistent with – and to be expected considering  – academic research that clearly shows that lawful gun carrying reduces crime.

This article was originally published on Brenner Brief. Original publish date Apr 10, 2014. Original author, Matt MacBradaigh.

Wyoming leads 19 states to challenge New Jersey’s concealed handgun law

CHEYENNE, Wyo. — Wyoming leads 19 states to challenge New Jersey’s concealed handgun law. The Wyoming-led coalition is asking the U.S. Supreme Court to let them submit a brief supporting a New Jersey man’s challenge to that state’s concealed weapons law. Other states joining in the effort are Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Kansas, Kentucky, Louisiana, Michigan, Missouri, Nebraska, New Mexico, Ohio, Oklahoma, South Carolina, South Dakota and West Virginia. The Wyoming attorney general’s office, acting as lawyer for the states, asked the Supreme Court to grant a hearing to John M. Drake and others who are challenging a recent appeals court ruling.

New Jersey’s law requires its citizens to prove a justifiable need to be granted a concealed weapons license. The state does not accept the desire for self-defense as a justifiable need – there must be a demonstrable “urgent necessity.” New Jersey’s legal code specifies:

In the case of a private citizen shall specify in detail the urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun. Where possible the applicant shall corroborate the existence of any specific threats or previous attacks by reference to reports of such incidents to the appropriate law enforcement agencies.

Drake, of Fredon, N.J., is a business owner who owns and services ATMs, requiring him carry large amounts of cash at times. “It seems unreasonable to me to have to wait until you’re beaten up or shot at to get a permit,” Drake said.

The brief from the Wyoming Attorney General’s Office says that Wyoming and the other states are concerned that if the appeals court ruling stands, it could threaten their less-restrictive concealed carry laws. Wyoming Gov. Matt Mead said, “This decision out of New Jersey impacts the right to keep and bear arms outside of the home… If the current decision stands, states providing greater protections than New Jersey under the Second Amendment may be pre-empted by future federal action… so I felt it was necessary to have the attorney general support a petition to the Supreme Court to hear this case.”

If the Supreme Court decides to hear the case, it may clear up confusion from contradictory rulings by the appellate circuit courts. Last summer, the 3rd U.S. Circuit Court of Appeals ruled against Drake’s challenge to the provision in New Jersey law that says people seeking permits to carry a concealed firearm must prove to police that they have a justifiable need.

However, last year the 7th Circuit Court ruled that the Second Amendment does protect the right to carry a weapon outside of the home for self-defense. Justice Robert R. Thomas, who wrote the court’s decisions cites Madigan v. Moore as well as the Supreme Court cases, D.C. v. Heller, which ruled the Second Amendment is an individual right to bear arms and that the core purpose is for self-defense, and McDonald v. Chicago, which held that the Second Amendment applies to states laws via the 14th Amendment. Justice Thomas wrote that “neither Heller nor McDonald expressly limits the Second Amendment’s protections to the home. On the contrary, both decisions contain language strongly suggesting if not outright confirming that the Second Amendment right to keep and bear arms extends beyond the home.”

This year, the 9th Circuit Court struck down California’s concealed-weapons permitting laws, saying the requirement of citizens to show “good cause” before being allowed to obtain a concealed carry permit violated the Second Amendment. The 9th Circuit, like the 7th Circuit ruling, relied on the Supreme Court’s Heller and McDonald decisions. The 9th Circuit also cited Muscarello v. United States, (which is also referenced in the Heller decision) for a definition of what it means to “bear arms,” noting “that surely a most familiar meaning is, as the Constitution’s Second Amendment indicates: wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.” The 9th Circuit stated “people are more sensibly said to bear Arms in nondomestic settings.”

This author has argued that, though falling short of explicitly stating the Second Amendment extends outside of the home, based on what the Supreme Court did state in Heller the only rational conclusion one could reach is the Second Amendment does, in fact, extend outside of the home. In Heller, the Court stated several lawful purposes exist for the Second Amendment: self-defense, hunting, militia duty, resisting tyranny from the government, repelling an invasion, and suppressing insurrection. All but self-defense require one to have a firearm outside of the home; while self-defense may be inside or outside of one’s home. If the Supreme Court hears the case, they may clear once and for all what is plainly – though not explicitly – stated in its own previous rulings: that the Second Amendment protects the right to keep and bear arms outside of the home.

By Matt MacBradaigh. Matt is a Christian, Husband, Father, Patriot, and Conservative from the Pacific Northwest. Matt writes about the Second Amendment, Gun Control, Gun Rights, and Gun Policy issues and is published on The Bell Towers, The Brenner Brief, PolicyMic. TavernKeepers, and Vocativ.

Follow Me on Twitter: https://twitter.com/2AFight  

Follow Me on Facebook:   https://www.facebook.com/2ndAmendmentFight
 

This article also appears on The Brenner Brief. (Original publication March 3, 2014).

Ninth Circuit strikes down California law restricting concealed weapons carry in Peruta v San Diego

San Diego, Calif., February 13, 2014 — California must allow law-abiding citizens to carry concealed firearms in public, a federal appeals court ruled, striking down the core of the state’s permit system for handguns. In a 2-1 decision issued on February 13th, the Ninth U.S. Circuit Court of Appeals ruled “San Diego County violates the Constitution’s Second Amendment by requiring residents to show ‘good cause’” before being allowed “to obtain a concealed carry permit.”

California has long had some of the nation’s strongest restrictions on gun ownership, and, according to the court, is one of only eight states that allow local governments to deny concealed-weapons permits. State law requires applicants to demonstrate good cause, as well as good moral character, to carry concealed handguns, while leaving the permit process up to each city and county. The court noted that the state did not accept the desire to be able to defend oneself as sufficient to demonstrate “good cause”.

California’s law was challenged by the National Rifle and Pistol Foundation (NRPF) and individuals who challenged the San Diego County system. C.D. Michael, lawyer for the NRPF, said “The right to self-defense doesn’t end at your threshold.”
The court agreed, ruling that the right to keep and bear arms is, in and of itself, a sufficient cause for bearing arms for self-defense both inside and outside of the home. Judge O’Scannlain’s majority opinion emphasized “the right to bear arms includes the right to carry an operable arm outside the home for the lawful purpose of self-defense.” The courts said the Second Amendment must be read as including “the right to carry weapons outside the home” because “the risk of armed confrontation” is in no way limited to one’s home, citing the examples of “a woman toting a small handgun in her purse as she walks through a dangerous neighborhood or a night-shift worker carrying a handgun in his coat as he travels to and from his job site.”

This author previously wrote a two-part series on the Second Amendment extending outside of one’s home based on Supreme Court’s 2008, D.C v Heller ruling. In the ruling, the high court says:

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

As previously noted, the Supreme Courts ruling says “for lawful purposes”, plural, and then says “such as self-defense within the home.” This means that self-defense within the home is one of several lawful purposes, not the sole lawful purpose for which the right to keep and bear arms is protected. Further, the Court explicitly mentions several other lawful purposes in Heller, including hunting, resisting tyranny from the government, repelling an invasion, suppressing an insurrection, in addition to self-defense. Hunting, resisting tyranny, repelling an invasion, and suppressing insurrection all require one to be outside of the home. And as is covered in part two of the series, the language used in Heller in no way suggests that self-defense itself would be confined to the home.

The Supreme Court wrote in Heller that people at the time of ratification understood the Second Amendment as protecting “the natural right of resistance and self-preservation” and that “Americans understood the “right of self-preservation” as permitting a citizen to “repel force by force” when “the intervention of society in his behalf, may be too late to prevent an injury” (p.21). Further, Heller reaffirms the court’s prior definition of “bear arms” in Muscarello v. United States, that “surely a most familiar meaning is, as the Constitution’s Second Amendment indicates: wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person” (p.10).

The Ninth Circuit’s ruling is in line with this analysis of what the Supreme Court has already clearly stated in Heller, as well as Muscarello and MacDonald v Chicago. Citing Heller, the Ninth Circuit’s judgment states: “Second Amendment codified a pre-exisiting, individual right to keep and bear arms and that that central component of the right is self-defense” (p.6). The Ninth Circuit further states “…people are more sensibly said to bear Arms in nondomestic settings” (p.16). Citing McDonald v Chicago, the Ninth Circuit notes that: “self-defense, recognized since ancient times as a basic right, is the central component of the Second Amendment… consequently, that right restricted not only the Federal government but under the Fourteeth Amendment, also the states” (p.7). Therefore, California’s law was stricken.

The Ninth Circuit ruling is a departure from other federal appeals courts that have upheld similar laws in New York, New Jersey and Maryland. But the decision concurs with an appellate court that struck down Illinois’ absolute ban on concealed weapons in public. The split among appellate circuits increases the prospect that the U.S. Supreme Court will take up the issue. If that happens, gun rights activists can expect the Ninth Circuit court’s ruling to be upheld, since it is built upon multiple – and several recent – Supreme Court rulings.

By Matt MacBradaigh. Matt is a Christian, Husband, Father, Patriot, and Conservative from the Pacific Northwest. Matt writes about the Second Amendment, Gun Control, Gun Rights, and Gun Policy issues and is published on The Bell Towers, The Brenner Brief, PolicyMic. TavernKeepers, and Vocativ.

Follow Me on Twitter: https://twitter.com/2AFight  

Follow Me on Facebook:   https://www.facebook.com/2ndAmendmentFight
 

This article also appears on The Brenner Brief. (Original publication February 20, 2014).

The Second Amendment right extends outside the home. In part one, we examined five lawful purposes protected by the Second Amendment as laid out by the supreme Court in the landmark case, D.C. v Heller. Here in part two we take a look at further evidence that demonstrates the right of the people to keep and bear arms extends outside of the home.

In part one, we saw that the Court ruled the D.C. handgun ban violated one of many lawful purposes of the Second Amendment, “such as self-defense within the home” (emphasis added). We see further the Court lists at least five lawful purposes – hunting, militia duty, repelling a foreign invader, suppressing insurrection, and resisting tyranny – that involve or require activity outside of the home. We can conclude from this that the right to keep and bear arms cannot be restricted to simply keeping a gun in the home.

Here in part two, we expand upon the core lawful purpose, which the Court specified in Helleris self-defense: “the inherent right of self-defense has been central to the Second Amendment right” (p.56). If one gets anything from the Heller decision, this must be it. The Court reiterated this finding in McDonald v Chicago in 2010, stating: “Two years ago, in District of Columbia v.Heller, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense” (Syllabus, p.1).

Self-defense can – and often does – involve a person outside of their home. Skeptics rely onreading into the Courts decision a limitation that the Court itself has not stated, postulating that “self-defense” might mean “self-defense… as long as you’re in your home; but nowhere else” because the Court struck down a law that prohibited guns in the home. But the Court itself did not specify this as the sole legitimate purpose, and this imagined limitation is artificially imposed in the minds of those that wish to limit others right to keep and bear arms protected by the Constitution.

The Court’s ruling in Heller sheds light on this. To recap, the Court thoroughly examines every word of the Second Amendment, defining it in historical context, legal precedent, and explaining how the right to keep and bear arms was viewed from English law to Colonial law, to the formation of the United States, post-ratification of the U.S. Constitution, through the post-Civil War era. It is clear from the historical documentation the people understood the right to keep and bear arms as part of the “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defense” (p.20). “They understood the right to enable individuals to defend themselves. Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury” (p. 21). The Court notes that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad” (p. 63). This means that understanding how the right to keep and bear arms at the time of ratification is critical to understanding what is protected in the Second Amendment today. There is no logical reason to conclude self-defense is limited solely inside one’s home, or that “self-preservation”, “repelling force with force”, or defending oneself suddenly stops because one is outside of the home.

Relevant to our understanding is the Court’s historical definition of what “keep” and “bear” meant. Keeping arms means to carry or have in one’s possession. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.” (p.9) The Court states: “the most natural reading of “keep Arms” in the Second Amendment is to “have weapons”” (p.8). “Bear arms” is synonymous with “carry arms”, “possess arms” and “have arms” (p. 14). “At the time of the founding, as now, to “bear” meant to “carry.” When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose — confrontation” (p.10). The Court says through examining historical source material, “In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia” (p.11). In Heller, the Court concurs with its prior definition from Muscarello v. United States, “in the course of analyzing the meaning of “carries a firearm” that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person” (p.10).

We can see that within the core lawful purpose of the Second Amendment of self-defense the terminology means to keep arms on one’s person in case of confrontation and the need to defend oneself. To suggest the right to self-preservation or self-defense in the face of confrontation and potential bodily harm is limited solely to the home is absurd. The common person’s understanding of their protected right of self-preservation logically extends outside the home. This is also consistent with the five previously covered lawful protected purposes that involve or require activity outside the home.

By Matt MacBradaigh. Matt is a Christian, Husband, Father, Patriot, and Conservative from the Pacific Northwest. Matt writes about the Second Amendment, Gun Control, Gun Rights, and Gun Policy issues and is published on The Bell Towers, The Brenner Brief, PolicyMic. TavernKeepers, and Vocativ.

Follow Me on Twitter: https://twitter.com/2AFight  

Follow Me on Facebook:   https://www.facebook.com/2ndAmendmentFight
 

This article also appears on The Brenner Brief. (Original publication November 26, 2013).

The Second Amendment Right Extends Outside The Home, Pt 2

by Matt MacBradaigh | Nov 26, 2013 | 2nd Amendment Facts | 2 comments

The Second Amendment right extends outside the home. In part one, we examined five lawful purposes protected by the Second Amendment as laid out by the supreme Court in the landmark case, D.C. v Heller. Here in part two we take a look at further evidence that demonstrates the right of the people to keep and bear arms extends outside of the home.

In part one, we saw that the Court ruled the D.C. handgun ban violated one of many lawful purposes – plural – of the Second Amendment, “such as self-defense within the home” (emphasis added). We see further the Court lists at least five lawful purposes – hunting, militia duty, repelling a foreign invader, suppressing insurrection, and resisting tyranny – that involve or require activity outside of the home. We can conclude from this that the right to keep and bear arms cannot be restricted to simply keeping a gun in the home.

Here in part two, we expand upon the core lawful purpose, which the Court specified in Heller is self-defense: “the inherent right of self-defense has been central to the Second Amendment right” (p.56). If one gets anything from the Heller decision, this must be it. The Court reiterated this finding in McDonald v Chicago in 2010, stating: “Two years ago, in District of Columbia v. Heller, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense” (Syllabus, p.1).

Self-defense can – and often does – involve a person outside of their home. Skeptics rely on reading into the Courts decision a limitation that the Court itself has not stated, postulating that “self-defense” might mean ‘self-defense… as long as you’re in your home; but nowhere else’ because the Court struck down a law that prohibited guns in the home. But the Court itself did not specify guns for self-defense in the home only as the sole legitimate purpose, and this imagined limitation is artificially imposed in the minds of those that wish to limit others right to keep and bear arms protected by the Constitution.

The Court’s ruling in Heller sheds light on this. To recap, the Court thoroughly examines every word of the Second Amendment, defining it in historical context, legal precedent, and explaining how the right to keep and bear arms was viewed from English law to Colonial law, to the formation of the United States, post-ratification of the U.S. Constitution, through the post-Civil War era. It is clear from the historical documentation the people understood the right to keep and bear arms as part of the “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defense” (p.20). “They understood the right to enable individuals to defend themselves. Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury” (p. 21). The Court notes that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad” (p. 63). This means that understanding how the right to keep and bear arms at the time of ratification is critical to understanding what is protected in the Second Amendment today. There is no logical reason to conclude self-defense is limited solely inside one’s home, or that “self-preservation”, “repelling force with force”, or defending oneself suddenly stops because one is outside of the home.

Relevant to our understanding is the Court’s historical definition of what “keep” and “bear” meant. Keeping arms means to carry or have in one’s possession. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.” (p.9) The Court states: “the most natural reading of “keep Arms” in the Second Amendment is to “have weapons”” (p.8). “Bear arms” is synonymous with “carry arms”, “possess arms” and “have arms” (p. 14). “At the time of the founding, as now, to “bear” meant to “carry.” When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose — confrontation” (p.10). The Court says through examining historical source material, “In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia” (p.11). In Heller, the Court concurs with its prior definition from Muscarello v. United States, “in the course of analyzing the meaning of “carries a firearm” that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person” (p.10).

We can see that within the core lawful purpose of the Second Amendment of self-defense the terminology means to keep arms on one’s person in case of confrontation and the need to defend oneself. To suggest the right to self-preservation or self-defense in the face of confrontation and potential bodily harm is limited solely to the home is absurd. The common person’s understanding of their protected right of self-preservation logically extends outside the home. This is also consistent with the five previously covered lawful protected purposes that involve or require activity outside the home.

This article was originally published on Brenner Brief. Original publish date Nov 26, 2013. Original author, Matt MacBradaigh.

The Second Amendment right extends outside the home. Some observers speculate that the right to keep and bear arms might mean inside one’s home only. Examination of the landmark Supreme Court case, D.C. v  Heller shows this assumption to be incorrect.

Restricting gun possession outside of the home is clear violation of the Second Amendment and intent of the protected right to keep and bear arms guaranteed in the Constitution at the time of ratification. Constitutional rights are supposed to be understood by common people – not requiring primary education, plus a 4-year college degree, a 3-year law degree and years of professional experience interpreting case-law to understand your pre-existing rights that areprotected by the Constitution. Obtuse lawyers, analysts and so-called ‘pundits’ seem to miss the forest for the trees. There’s a reason for this: they look at what a particular case actually ruled on, and the Supreme Court only ruled on a very specific question – ‘is a law that prohibits gun possession in one’s home constitutional?’. The Supreme Court ruled in D.C. v Heller that it is not constitutional. Ergo, some short-sighted commentators take that to mean that the Court has “been silent” on the question of whether gun possession outside of the home is protected under the Second Amendment.

Not so fast.

The Court provided in-depth reasoning as to why the law was invalid, defining every one of the 27 words that comprise the Second Amendment, explaining the words meaning at the time of ratification, the legal history of the right to keep and bear arm from England to Colonial America, and how it was viewed after the ratification of the U.S. Constitution through the post-Civil War era. From this thorough examination, we can clearly see the absurdity of the supposition that the Second Amendment only means you can keep a gun in your home because of the Supreme Court’s ruling in Heller. At no point in Heller did the Court say the Second Amendment only protected the right to keep and bear arms in the home. Let’s look at what the Court did say:

“Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home” (Syllabus, page 1).

Notice it says “for lawful purposes”, plural, and then says “such as self-defense within the home”. This means that self-defense within the home is one of several lawful purposes, not the sole lawful purpose for which the right to keep and bear arms is protected. Further, the Court explicitly mentions several other lawful purposes in Heller.

Though the Court says the Second Amendment is not dependent upon service in a militia or military unit (p.11-12), it is also clear that militia service is a protected lawful purpose. To be clear, this does not mean the National Guard, which didn’t exist as we know it today didn’t until 1903. The Court clearly states in Heller that the militia were (and still are under Federal law) all able-bodied males (p.23). It should be obvious that militia perform its duties outside of the home.

Hunting is a specifically mentioned lawful purpose in Heller: “most undoubtedly thought it even more important for self-defense and hunting” (p. 26). Hunting, in virtually all cases, means outside of the home. One could not take seriously the idea that hunting is only lawful inside ones home. There is no suggestion in Heller that the Court implied this, only that D.C.’s unconstitutional law violated one of the Second Amendment’s lawful purposes.

The Court notes an additional three lawful protected purposes in discussing the meaning of the phrase ‘the security of a free state’, repelling invasion, suppressing insurrection and resisting tyranny: “it is useful in repelling invasions and suppressing insurrections… when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny” (p.24-25). All listed lawfully protected purposes logically must involve citizens outside their home; repelling a foreign invader could not be done solely within one’s home, nor could suppressing an insurrection, or resisting government tyranny.

An objector may reason that these purposes aren’t necessities in the way they may have been at the time ratification. This is irrelevant, as the Court states: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad” (p.63). At the time of adoption, this is how the right was understood and all are lawful purposes regardless of whether future generations would exercise the lawful purpose later. The fact remains they are lawful purposes, require the people to be outside of their homes, and therefore demonstrate the idea that the Second Amendment’s lawfully protects guns outside of the home by necessity.

We see from Heller itself that the Court lists multiple lawful purposes in plurality, not restricting the Second Amendment to a singular lawful purpose. The Court explicitly details at least five purposes that involve or require activity outside of the home. Therefore we can easily conclude the suggestion that the Court has – or could – rule that the only lawful purpose is gun possession for self-defense within a home is absurd, defying logic and reason as well as the explicitly written letter of the ruling.

Be sure to check out part two of this series as we continue to look at why the Second Amendment protects your right to keep and bear arms outside of the home.

By Matt MacBradaigh. Matt is a Christian, Husband, Father, Patriot, and Conservative from the Pacific Northwest. Matt writes about the Second Amendment, Gun Control, Gun Rights, and Gun Policy issues and is published on The Bell Towers, The Brenner Brief, PolicyMic. TavernKeepers, and Vocativ.

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This article also appears on The Brenner Brief. (Original publication November 22, 2013).

The Second Amendment Right Extends Outside The Home, Pt 1

by Matt MacBradaigh | Nov 22, 2013 | 2nd Amendment Facts | 5 comments

The Second Amendment right is not limited to one’s home. Some observers speculate that the right to keep and bear arms might mean inside one’s home only. However the landmark Supreme Court case, D.C. v  Heller clearly demonstrates this assumption is incorrect and the Second Amendment extends out of the home.

Restricting gun possession outside of the home is clear violation of the Second Amendment and intent of the protected right to keep and bear arms guaranteed in the Constitution at the time of ratification. Constitutional rights are supposed to be understood by common people – not requiring primary education, plus a 4-year college degree, a 3-year law degree, and years of professional experience interpreting case-law to understand your pre-existing rights that are protected by the Constitution. Obtuse lawyers, analysts and so-called ‘pundits’ seem to miss the forest for the trees. There’s a reason for this: they look at what a particular case actually ruled on, and the Supreme Court only ruled on a very specific question – ‘is a law that prohibits gun possession in one’s home constitutional?’. The Supreme Court ruled in D.C. v Heller that it is not constitutional. Ergo, some short-sighted commentators take that to mean that the Court has “been silent” on the question of whether gun possession outside of the home is protected under the Second Amendment.

Not so fast.

The Court provided in-depth reasoning as to why the law was invalid, defining every one of the 27 words that comprise the Second Amendment, explaining the words meaning at the time of ratification, the legal history of the right to keep and bear arm from England to Colonial America, and how it was viewed after the ratification of the U.S. Constitution through the post-Civil War era. From this thorough examination, we can clearly see the absurdity of the supposition that the Second Amendment only means you can keep a gun in your home because of the Supreme Court’s ruling in Heller. At no point in Heller did the Court say the Second Amendment only protected the right to keep and bear arms in the home. Let’s look at what the Court did say:

“Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home” (Syllabus, page 1).

Notice it says “for lawful purposes” – plural – and then says “such as self-defense within the home”. This means that self-defense within the home is one of several lawful purposes, not the sole lawful purpose for which the right to keep and bear arms is protected. Further, the Court explicitly mentions several other lawful purposes in Heller.

Though the Court says the Second Amendment is not dependent upon service in a militia or military unit (p.11-12), it is also clear that militia service is a protected lawful purpose. To be clear, this does not mean the National Guard, which didn’t exist as we know it today didn’t until 1903. The Court clearly states in Heller that the militia were (and still are under Federal law) all able-bodied males (p.23). It should be obvious that militia perform its duties outside of the home.

Hunting is a specifically mentioned lawful purpose in Heller: “most undoubtedly thought it even more important for self-defense and hunting” (p. 26). Hunting, in virtually all cases, means outside of the home. One could not take seriously the idea that hunting is only lawful inside ones home. There is no suggestion in Heller that the Court implied this, only that D.C.’s unconstitutional law violated one of the Second Amendment’s lawful purposes.

The Court notes an additional three lawful protected purposes in discussing the meaning of the phrase ‘the security of a free state’, repelling invasion, suppressing insurrection and resisting tyranny: “it is useful in repelling invasions and suppressing insurrections… when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny” (p.24-25). All listed lawfully protected purposes logically must involve citizens outside their home; repelling a foreign invader could not be done solely within one’s home, nor could suppressing an insurrection, or resisting government tyranny.

An objector may reason that these purposes aren’t necessities in the way they may have been at the time ratification. This is irrelevant, as the Court states: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad” (p.63). At the time of adoption, this is how the right was understood and all are lawful purposes regardless of whether future generations would exercise the lawful purpose later. The fact remains they are lawful purposes, require the people to be outside of their homes, and therefore demonstrate the idea that the Second Amendment’s lawfully protects guns outside of the home by necessity.

We see from Heller itself that the Court lists multiple lawful purposes in plurality, not restricting the Second Amendment to a singular lawful purpose. The Court explicitly details at least five purposes that involve or require activity outside of the home. Therefore we can easily conclude the suggestion that the Court has ruled – or could rule – that the only lawful purpose is gun possession for self-defense within a home, is absurd, defying logic and reason as well as the explicit written letter of the ruling.

Be sure to check out part two of this series as we continue to look at why the Second Amendment protects your right to keep and bear arms outside of the home.

This article was originally published on Brenner Brief. Original publish date Nov 22, 2013. Original author, Matt MacBradaigh.