Thursday, November 08, 2018

First Circuit Rules there is no Right to Bear Arms Outside the Home




On 2 November, 2018, the First Circuit court of appeals held the Second Amendment effectively does not apply outside the home.  From uscourts.gov:

This case involves a constitutional challenge to the Massachusetts firearms licensing statute, as implemented in the communities of Boston and Brookline. All of the individual plaintiffs sought and received licenses from one of those two communities to carry firearms in public. The licenses, though, were restricted: they allowed the plaintiffs to carry firearms only in relation to certain specified activities but denied them the right to carry firearms more generally. 

The plaintiffs say that the Massachusetts firearms licensing statute, as implemented in Boston and Brookline, violates the Second Amendment. The district court disagreed, and so do we. Mindful that "the right secured by the Second Amendment is not unlimited," District of Columbia v. Heller, 554 U.S. 570, 626 (2008), we hold that the challenged regime bears a substantial relationship to important governmental interests in promoting public safety and crime prevention without offending the plaintiffs' Second Amendment rights. Accordingly, we affirm the district court's entry of summary judgment for the defendants. In the last analysis, the plaintiffs simply do not have the right" to carry arms for any sort of confrontation" or "for whatever purpose" they may choose. Id. at 595, 626 (emphasis omitted). 

The Court specifically said the decision applies to both open and concealed carry of handguns. They reserved the power to infringe on concealed carry more than open carry.

Judge Selya  wrote the decision for the unanimous three judge panel. They held that allowing police to decide if a citizen has a "need" to carry a gun outside the home allows sufficient exercise of Second Amendment rights.

A right that can be arbitrarily denied by the government is no right at all. It is effectively just another activity that may be allowed by the government, if a bureaucrat decides to allow it.

In the most restrictive countries, without any semblance of Constitutional rights or the Second Amendment, those favored by the government are allowed to carry firearms outside the home. They may not be given a permit, they may be issued a nominal office such as police officer or special marshal, or party member. But those favored by the Government are given the privilege of being armed.

It is hard to see how this decision differs in effect from the practice in countries without a Second Amendment.

In this decision, the Court is following the lead of  other Circuit courts that have eviscerated the Second Amendment right to bear arms.

To date, the Supreme Court has been unwilling to take any circuit cases, and has allowed the Circuits to run roughshod over the exercise of Second Amendment Rights outside the home.

There is a clear split in the circuits. At present, three circuits have held there is a right to carry outside of the home. Three have ruled the opposite.

In the case of the District of Columbia, those who push for a disarmed public urged the District not to appeal the case, for fear the Supreme Court would uphold the Second Amendment.  In the Seventh Circuit case of Moore v. Madigan, the Illinois legislature passed legislation rendering the decision moot. in the Ninth Circuit, in Young v. State of Hawaii, the state has asked for an en banc hearing, which has yet to be decided.

In the Fourth Circuit, the Second Circuit, and the First Circuit, the appeals courts have held that laws allowing state governments to prevent most people from  carrying weapons outside the home are Constitutional, gutting the exercise of Second Amendment rights in public, and in most private settings.

Judge Selya was appointed by President Reagan in 1986. He was born in 1934.

If Judges do not feel bound by the Constitution, the Constitution will have no force.

This case will be appealed to the Supreme Court. The question is whether the Supreme Court will grant a writ of certiorari, that is, will decide to hear the case.

President Trump has appointed two originalists and textualists to the Supreme Court. That may tip the balance. They may vote to hear the case.

President Trump has also appointed  29 appellate court judges in his first two years. That is a record for appellate court justices in the first two years of a  president's term in office.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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2 comments:

Anonymous said...

Cite as: 554 U. S. ____ (2008) 19 Opinion of the Court c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed by any government entity.

Paul Weber said...

Since the decision by the Fist Court effectively says the Supreme Court got it wrong, I expect the Supreme Court to weight in and tell the First Court "what's-what."