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Right-to-Carry Victory in Court

Friday, March 1, 2013

As Gun-Ban Forces Launch Attacks, Court Action Paves the Way for Right to Carry. 

By Chris W. Cox, NRA-ILA Executive Director

Since mid-December, gun owners have joined in the nation’s grief over the acts of a madman in Newtown, Conn. While the media have focused heavily on the Obama administration’s push for new restrictions on gun owners’ rights, far less attention has been paid to major court actions the week before the horrific crimes; those court decisions and arguments may soon let law-abiding residents of several states protect themselves more effectively from attacks outside their homes. 

Leading the Right-to-Carry news was a Dec. 11 federal appeals court decision striking down Illinois’ near-total ban on carrying a firearm for self-defense outside the home. In a decision covering the NRA-backed case of Shepard v. Madigan and a similar non-NRA case, Moore v. Madigan, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit rejected the often-heard claim that the Second Amendment’s protections apply inside the home but not on the street outside. The court called this distinction “irrational.” 

The case was brought by Mary E. Shepard, who was seeking to exercise her right to self-defense following a brutal beating at the hands of a violent criminal. Joining her as a plaintiff was the NRA’s state affiliate, the Illinois State Rifle Association. The NRA Institute for Legislative Action fully funded the case.

In the court’s opinion, Judge Richard Posner relied heavily on the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago. Although Posner himself has criticized the Heller decision, he applied it faithfully, writing that the defenders of Illinois’ law “ask us to repudiate the [Supreme] Court’s historical analysis. That we can’t do.” Posner went on to note that Heller “repeatedly invokes a broader Second Amendment right than the right to have a gun in one’s home.” Noting the Supreme Court’s analysis of the importance of the Second Amendment on the 18th-century frontier, he added, “Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.”

Judge Posner went even further, in fact, suggesting that a stalked or battered woman might have “a stronger self-defense claim to be allowed to carry a gun in public” than at home: “To confine the right to be armed to the home is to divorce the Second Amendment from the right to self-defense described in Heller and McDonald.” He also discussed the Second Amendment’s reference to the right to “bear” arms: “To speak of ‘bearing’ arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home.” 

Judge Posner—the author of many scholarly books on law and economics—also examined the work of economists and criminologists who have studied the Right-to-Carry issue. Clearly not persuaded that a Right-to-Carry ban benefits public safety, he wrote that “the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law.”

The court gave the Illinois legislature 180 days to write a new law that complies with the decision, although an appeal could stretch that time limit. (At press time, the state had just asked for a review of the case by the full Seventh Circuit.) Illinois has already been the scene of an intense campaign by the NRA to pass Right-to-Carry legislation. In 2011, a Right-to-Carry bill received a majority vote in the state House, but didn’t get over a super-majority hurdle that had been set up in a parliamentary move by House Speaker Mike Madigan, at the urging of bill opponents.

Coast-to-Coast Court Action 

The Seventh Circuit isn’t the only court considering these issues. Just a week before the NRA victory in Shepard v. Madigan, the San Francisco-based U.S. Court of Appeals for the Ninth Circuit heard several arguments against the abuse of California’s permitting structure by local authorities. The NRA-backed case of Peruta v. County of San Diego challenges local practices in San Diego County, and Richards v. Prieto (a non-NRA case) challenges those of northern California’s Yolo County. 

At issue in both cases is the California law that says a resident may only receive a carry license by showing “good cause.” Today, issuing authorities such as county sheriffs or police chiefs have significant leeway in how “good cause” is interpreted. Some officials grant nearly every permit when the applicant passes a background check, and others impose a nearly impossible standard. Further burdening self-defense rights, in 2011, California banned the unlicensed open carry of unloaded handguns, making it impossible to legally carry a handgun for self-defense outside the home without a license.

Representing plaintiff Edward Peruta was former U.S. Solicitor General Paul Clement. Clement pointed out that in Heller, the Supreme Court clearly did not limit self-defense rights to the home. He went on to explain in detail the Supreme Court’s analysis of the right to “bear” arms. For instance, the Supreme Court stated in Heller that the Second Amendment would not prevent restrictions on carrying firearms in “sensitive places,” implying that there must be some right to do so in places that are not “sensitive.” The attorney for San Diego responded by claiming there is a strong government interest in restricting carry outside the home due to the “deadly nature” of firearms—an argument epitomized by his statement that “a handgun with a couple of clips is a weapon of mass destruction.”

Also heard before the Ninth Circuit were arguments in Baker v. Kealoha, a non-NRA case that challenges Hawaii’s near-complete ban on the issuance of concealed carry permits. Hawaii’s statute says that a concealed carry permit shall be issued only “in an exceptional case” or “where urgency or need has been sufficiently indicated,” and gives police chiefs arbitrary power to decide whose case is “exceptional.” (In practice, no permits are ever issued, a fact that the government’s attorney carefully dodged during the argument.)

Meanwhile, just a week earlier and at the other end of the country, the New York City-based U.S. Court of Appeals for the Second Circuit on Nov. 27 rejected a challenge to that state’s requirement—similar to California’s—that a permit applicant has “proper cause” to get an unrestricted carry license. (That decision was in the non-NRA case of Kachalsky v. County of Westchester.) While the Second Circuit noted that “[t]he plain text of the Second Amendment does not limit the right to bear arms to the home,” it concluded that the right is more limited outside the home and that the “proper cause” requirement is “substantially related to New York’s interests in public safety and crime prevention.”

Finally, the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., heard arguments on Oct. 24 in another non-NRA case, Woollard v. Sheridan. In that case, the state of Maryland is appealing a trial court decision striking down the state’s requirement that a permit applicant have “good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.” Maryland authorities do not traditionally consider self-defense a “good or substantial” reason to carry a firearm. The NRA has submitted a “friend of the court” brief in the case to make clear that “[b]ecause it almost completely forecloses the right to carry handguns for self-defense outside the home, Maryland’s statute is in conflict with the Second Amendment.”

California's Second Front

Opening another front in the California Right-to-Carry battle, on Sept. 5, a lawsuit backed by the NRA and the California Rifle and Pistol Association was filed against Orange County, Calif., and Orange County Sheriff Sandra Hutchens. The suit (McKay v. Hutchens) was filed in federal court on behalf of several Orange County residents who have been denied carry licenses. It challenges Sheriff Hutchens’ discriminatory practice of requiring a carry permit applicant to show “a special or contemporaneous ‘need’ to defend oneself—something more than ‘general concerns about personal safety.’”

The plaintiffs argue that this vague and discriminatory “standard”—along with the state’s ban on the open carry of unloaded handguns and long guns without a license—infringes on “the right of law-abiding, competent adults to ‘possess and carry weapons in case of confrontation,’” as stated in the Heller decision and applied to the states in the McDonald decision. The court denied the plaintiffs’ motion for an injunction against the discriminatory practices, but the result was exactly what we wanted: a fast-track appeal to the Ninth Circuit.

With all of these cases pending, the coming weeks and months will surely bring significant rulings that affect every American’s right to self-defense outside the home. No matter the result, the NRA will continue to fight in the courts and in the state legislatures to protect the right to self-defense recognized in Heller and so articulately described by Judge Posner in the Seventh Circuit’s Shepard ruling. 

A version of this story first appeared in NRA-ila’s online Legal Update newsletter. For the latest news on NRA-ila’s courtroom battles, sign up for Legal Update at www.NRAila.org/legalupdate

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.