Guns

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Does the Second Amendment apply outside the home?

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Yesterday the Supreme Court considered the question of whether the Second Amendment applies outside of jurisdictions controlled by the federal government. The Court will almost certainly say yes, and soon it may consider a question that should be equally easy to answer: whether the Second Amendment applies outside of the home.

In 2008, the first time the Supreme Court explicitly declared that the Second Amendment protects an individual right to "keep and bear arms," it ruled that the District of Columbia's handgun ban violated that right. Since the Chicago handgun ban at issue in the case the Court heard this week is virtually identical, it will be overturned if the Court concludes that the Second Amendment binds states and cities as well as the federal government. And since the Court has ruled that almost all of the other guarantees in the Bill of Rights apply to the states by way of the 14th Amendment, it would be very strange if the fundamental right to armed self-defense did not make the cut.

Assuming the Court strikes down Chicago's handgun ban, what other forms of gun control could be vulnerable? Since the Second Amendment protects the right to "bear" arms as well as the right to "keep" them, restrictions on carrying guns in public are a ripe target.

Forty-one states either do not require handgun carry permits or issue them to anyone who satisfies a few objective criteria, which generally include firearms training and lack of a criminal record. Seven states let local officials decide whether to issue permits, while Illinois, Wisconsin, and Washington, D.C., do not allow even that option.

Last summer, Tom Palmer, one of the original plaintiffs in the D.C. gun ban case, filed a federal lawsuit that challenges the District's prohibition on carrying guns in public. Palmer, a scholar at the Cato Institute, knows from personal experience that such restrictions can be deadly: He vividly recalls how brandishing a handgun on a Northern California street saved him from a group of thugs who shouted anti-gay slurs and threats at him on a summer night in 1982.

District officials predictably warn that chaos would ensue from allowing law-abiding people to carry guns in public. But that has not happened in any of the states with nondiscretionary carry permit policies.

Although the crime-reducing benefits of such policies remain controversial, the blood-soaked visions of doomsayers who imagined routine arguments regularly culminating in gunfire have not transpired in the two decades since Florida started the trend toward liberalization. In fact, data from Florida, Texas, and Arkansas indicate that permit holders are far less likely to commit gun crimes (or other offenses) than the general population. The experiences of these jurisdictions show there is no safety benefit from prohibiting public carrying of guns that could possibly outweigh the Second Amendment interests at stake.

Palmer and his co-plaintiffs concede that a city or state may bar guns from "sensitive places such as schools and government buildings" or regulate the manner in which they are carried, policies that the Supreme Court called "presumptively lawful" in its 2008 decision. But they argue that the Second Amendment cannot reasonably be read to allow "a total ban on the exercise of the right to bear all arms, by all people, at all times, for all purposes."

The Supreme Court said a handgun ban is especially problematic when it extends to "the home, where the need for defense of self, family, and property is most acute." But in his dissent, Justice John Paul Stevens worried that the D.C. ban "may well be just the first of an unknown number of dominoes to be knocked off the table," in light of "the reality that the need to defend oneself may suddenly arise in a host of locations outside the home." For people like Tom Palmer who are intimately familiar with that reality, the falling of those dominos will be something to celebrate.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.

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  1. Why do the other amendments apply throughout the country, but the 2nd ostensibly only applies to the National Guard? Does the 3rd amendment apply to the National Guard? In times of peace, guardsmen can’t live in their own houses?

    1. fuckin’ a

      exhibit a: what the fuck don’t you get, you dictating dictators?

      1. Take a letter.

        No, wait, take a number.

        Any number but 2.

        You can Amend it later.

  2. Palmer and his co-plaintiffs concede that a city or state may bar guns from “sensitive places such as schools and government buildings”

    “Sensitive places.” An interesting concept! One could argue that “sensitive places” are even *more* appropriate for carry.

  3. The 2nd Am itself, defines the rights that the federal government can not restrict. The Bill of Rights expand the intent that the Constitution is a restriction on the Federal government only. It ‘grants’ no rights but defines the powers of the central government.

    Strictly speaking, the Constitution has no power over the states. However, after the Civil War, the Federal government was asserted over the states and passed a few amendments including the 14th. Even if the intent was to preserve liberty and protect citizens, the 14th Am goes against the intent of the Constitution by asserting the federal powers above the states.

    Simply, the 2nd Am only restricts the federal government as the states powers are defined by their constitutions.

    1. Strictly speaking, the Constitution has no power over the states. However, after the Civil War, the Federal government was asserted over the states and passed a few amendments including the 14th. Even if the intent was to preserve liberty and protect citizens, the 14th Am goes against the intent of the Constitution by asserting the federal powers above the states.

      This seems a strained interpretation to me. The Constitution restricts states in many ways, notably in guaranteeing a republican form of government to every state. While it is clear that the Bill of Rights was not intended to apply to state government action and that the 14th amendment did lead to federal preeminence, I can’t see how this goes against the intent of the Constitution. As another example, the Supremacy Clause makes it clear that the Constitution and federal law trump state constitutions and laws. I find the argument that the federal government oversteps the bounds of its delegated powers much more convincing.

  4. Fark, it’s early…I need to proof read…

    To answer the question in blog entry title, “Does the Second Amendment apply outside the home?”

    No, because, as written, the federal government has no power to restrict firearms.

    The question applied to the states is completely different and is defined by each states constitution.

    In practical application, I do believe that states could restrict where people take weapons without restricting ownership.

    1. It must be very early where you’re at.

      Where does the 14th amendment fit into all of this?

      What about interracial marriage or free speech? Can the states also restrict these things based on their constitutions and the lack of federal power in these areas?

      1. What about interracial marriage or free speech? Can the states also restrict these things based on their constitutions and the lack of federal power in these areas?

        Before the 14th Amendment, states could do these things.

        1. “Before the 14th Amendment, states could do these things.”

          And long after the ratification of the 14th amendment. The idea that the 14th gives the federal government the right to restrict state lawmaking did not start with the ratification of the 14th in 1866. It started in the 1940’s, with an activist Supreme Court that used the 14th as an excuse to extend its own power.

      2. I referred to the 14th because the issue of incorporation is being brought up and whether the 2nd Am will be incorporated.

    2. Well, you’d be wrong unless you want to advocate repealing the 14th Amendment. Otherwise, it’s perfectly constitutional to restrict the states in this way. See Brendan’s comment for examples.

      1. It is only Constitutional now because of the 14th Am. After the Civil War and the assertion of the federal government as primary over the states, the federal government official overstepped the limitations placed on it by the Constitution. We, as citizens accept this because we are used to it and have been taught that it is correct.

  5. …Justice John Paul Stevens worried that the D.C. ban “may well be just the first of an unknown number of dominoes to be knocked off the table,”…

    Damn right. Roughly 20,000 dominoes, last I heard. Gradualism got us here. Change direction and gradualism could maybe get us back. Let those dominoes fall.

    1. Amen to that. Stevens’ statement amounts to, “But regardless of whether you’re right on this issue, if I admit it, I’ll have to admit my other favorite legal issues aren’t valid either.” To which the only real answer is, “You shouldn’t have built your house on sand, then.” One can only hope that the American legal system’s decades of ignoring internal contradictions are finally catching up to it…

      1. This is why conservatives (like me) need to cut President Bush Jr. some slack. He may have spent money like a drunken sailor, and expanded the bureaucracy way too much, but he gave us two rock-solid Supreme Court justices.

        1. Drunken Kennedy!
          Sailors spend their own money.

  6. The next assault on gun rights will come disguised as a public health issue. If they can force you to buy health insurance, they will be able to force you not to own a gun, smoke a cig or eat a cheeseburger.

  7. “In fact, data from Florida, Texas, and Arkansas indicate that permit holders are far less likely to commit gun crimes (or other offenses) than the general population.” I just don’t believe this statement. Equally likely perhaps, but owning a gun does not make you more moral.

    1. Having a clean criminal record is one of the requirements for getting a permit in Arkansas. A concealed carry permit may not make one more moral, but it may be that only more moral people are getting the permits. At the other end of the spectrum, people who plan on committing crimes aren’t going to bother with concealed carry permits. Having one’s fingerprints on file just makes it that much easier to get caught.

      1. I think the statistics are skewed. The ‘general population’ must include all those in in prison or with criminal records.

        1. This is simple conditional probability (to be fair conditional probabilty is a difficult concept). Let X be the entire adult population of the US and let G be the gun permit carrying subpopulation of X and let C be the subpopulation of X that commits crimes. The probabilities we are interested in are P(C|X) as it relates to P(C|G), in particular P(C|X) > P(C|G) (the probability that an adult will commit a crime is greater than the probability that a gun permit holder will commit a crime).

          The fact that you are calling conditional probability “skewed” demonstrates your lack of understanding of what statistics and probability are, specifically conditional probability. By your definition, ANY conditioning can be called skewed. This misunderstanding of conditional probability is at the heart of most people’s lack of understanding of the Monty Hall problem, so it’s not at all surprising that you would call the article’s statistics “skewed”.

          While this article doesn’t say so, if you let CC be the subpopulation of X that are convicted criminals and let L = X-C (the subpopulation of X that are NOT convicted criminals), I’d still be willing to be that P(C|L) > P(C|G). This is the probability that you are probably most insterested in causing your misunderstanding of what the article is saying (intentional maybe?). The fact that you are most likely calling into question P(C|L) > P(C|G), while the article is talking about P(C|X) > P(C|G) is the most likely reason you call the article’s statsistics “skewed”.

          1. Ken, I am very interested in your response but I need to look at it. I will try to find the original data. I have found a website that deals with gun permit issues that is very interesting reading but alas my time is limited. You are right about how I was looking at the stats but I have a lot more issues with it including the timeline (conviction process versus gun permit existence)/population (85% male in some states)/attrition of permit holders before formal convictions etc. Too bad you don’t have a blog.

    2. What about people who have guns but not a permit?

    3. There are generally some requirements to getting a permit. Someone who follows the requirements is going to be a person who generally follows the rules. They are thus less likely to break the rules / laws. QED.

    4. Like KWebb says, having a permit indicates you have a clean criminal record, and it indicates you have an interest in doing things legally and by the book. Those are pretty good indicators of not being a criminal type.

    5. Nobody gives a shit what you believe. The statistics are available, go look them up.

      1. T, I noticed all the 0 comments on your blog. I guess nobody gives a shit what you write.

        1. Not even me, most days. What’s your point?

          1. “Not even me, most days.” You need a shot of testosterone. Have fun.

  8. The 10th amendment basically says that if a right is not defined in the Constitution, if falls to the states or the people. As such, the right to keep and bear arms is universal, not something the states can override. If this wasn’t the case, then New Jersey could have it’s own state religion. Alabama could say you can’t use the phrase “Wankle Rotarty Engine”. Idaho could demand it’s residents put up soldiers in their homes.

    1. Massachusetts did have a stste religion befroe the war and some southern states did censor books for political reasons. It was the black codes proposed by Louisiana and Missippii which prompted limits of state rights which are the basis of the 14th amendment.

    2. Actually, the 10th amendments states ‘powers’ not ‘rights’…

      “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. “

    3. it’s almost impossible to be more wrong on the 10A than this.

  9. “Wankle Rotarty Engine”?

    With a name like Wankle Rotarty it has to be good!

  10. District officials predictably warn that chaos would ensue from allowing law-abiding people to carry guns in public. But that has not happened in any of the states with nondiscretionary carry permit policies.

    But we have scary black and brown people who can’t be trusted!

    1. And, Chicago is really close to us.

      (burp)

      1. I have been there. There is nothing close to Wisconsin.

    2. We’re all good.

  11. The Court will almost certainly say yes, and soon it may consider a question that should be equally easy to answer: whether the Second Amendment applies outside of the home.

    I could have sworn my copy of the Constitution said there was a right to keep and bear arms. I wonder if the copy the SCOTUS uses says something else?

    1. I wonder if the copy the SCOTUS uses says something else?

      It might–the GPO’s version of the Constitution leaves a part out, namely the Preamble to the Bill of Rights. Can’t imagine why the government wouldn’t want to remind us of language like:

      THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

      Cato’s copy gets it right, BTW.

  12. I just blogged this issue on my business journalism blog this morning.

    http://bit.ly/9uNpzH

    My favorite part was what the Brady Campaign now considers “political theater.”

  13. I just want some Supreme Court judge to make a bear joke.

    “Yes, you have the right to BEAR arms, but you can’t have a weapon.”

  14. Only if the first ammendment would protect us fully in our own country Iwould have faith in the second

  15. The anti-gun crowd can depend on liberal disinformation in textbooks and classrooms to help sway young people to their side. The HistoryHalf site addressed this: http://historyhalf.com/academi…..amendment/

    It’s pernicious.

  16. In Nevada we have what is called open carry. An individual can carry a gun exposed on their hip in a holster, with no permit. Imagine that in Chicago, Washington D.C., or gasp… San Fransisco!

    1. Likewise in Wisconsin, though the right is so little exercised that not many people know about it–even police officers. A cop somewhere in the eastern part of the state arrested a guy for packing a handgun while he mowed his yard. When it came time to file charges, there were none to file.

    2. We have that in Maine as well. In fact the state constitution says something along the lines of “the right of the people to keep and bear arms shall not be questioned”.

      Try it and they’ll still take you to the station and give you a cavity search. And if they can’t find anything they’ll still get you for disturbing the peace or disorderly conduct.

    3. Uhh…You can do that in San Francisco. California is an open carry state. The catch is that while a firearm is carried openly it must be unloaded. Though you can have a loaded magazine at the ready.

  17. Sensitive Zones

    … because God knows criminals and psychopaths follow the law to the letter.

    I hope they determine that carry (concealed and open) is a Constitutional right. Not only would it be awesome to have that right defined and secured by the supreme law of the land (aka the Constitution) but it would also throw all the liberals like the people at the Brady Campaign into conniption fits.

    Also, I saw that Starbucks is going to allow people to open carry where legal in any store in direct opposition to what the Brady Campaign demanded they do.

  18. If we follow the intents of the threads posted above, it can be surmised that the 14th Amendment was designed to protect the fundamental rights of the Citizens of the United States from intereference or infringment by the States should the State Legislatures.

    “A well regulated militia being necessary for the security of a free state; the right of the people to keep and bear arms shall not be infringed.” is a statement that clearly reserves the right of the Citizens of the United States to posess and carry firearms for defense of state and self. That is a guaranteed right of all American Citizens regardless of the state of residence. Finally, SCOTUS has heard the legal background and will hopefully validate that it is a fundamental right. Already, ownership of firearms is not conditional on being a member of the Militia (although the founders surmised that all citizens would be members of the militia).

  19. I would like to exercise my right to have my boring little human arms replaced with a big set of bear arms!

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  22. I think there should be stricter laws regarding this, but it should reach much farther (like automatic weapons and gun shows). Gotta say it’s interesting reports show registered carriers less likely to use them badly though.

  23. The best site with concealed carry information is USA Carry by far. They keep their site up to date.

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  25. You end up with rule by whichever sociopath with a gun manages to win.

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