"... keep and bear arms ..."
To think, just six years ago, folks were debating the meaning of commas, militias, and whether there was a right to individual ownership of firearms. Now, the issue is what those four words mean, and whether "keep" and "bear" imply two separate rights, one of ownership, and one of open or concealed carry.
The practical impact of the distinction is paramount: do states have to allow citizens to carry weapons in public if they choose. The circuit split is huge, and it just got wider. While the Second, Third, and Fourth Circuits have upheld restrictions on concealed carry, the Seventh Circuit was just joined by the most unlikely of circuits, the Ninth Circuit, in striking down state laws restricting the practice.
Though the Supreme Court has repeatedly punted on taking gun cases, especially those that address concealed carry, the court has three opportunities to address the divisive issue in the near-term:
Soon: 5th Circuit's NRA Cases
As we mentioned earlier this week, at the Court's next conference on February 21, it will consider three firearm-related cases, including two brought by the National Rifle Association on behalf of 18 to 20-year-olds, who are prohibited by state and federal law from owning handguns.
One of the cases makes the on-point argument that no statutory terms are superfluous, and District of Columbia v. Heller recognized that "keep" means to own in one's own home. "Bear," therefore, must mean to carry that weapon outside of one's home.
This Fall: 3rd Circuit's Drake v. Filko
The Cato Institute, earlier this week, filed an amicus brief asking the Supreme Court to review the Third Circuit's decision in Drake v. Filko. In that case, the circuit court upheld New Jersey's "may issue" concealed carry system, where those seeking to carry a weapon must demonstrate "good cause" in the form of specific, credible threats, in order to get a two-year permit.
The system is similar to Maryland's, which was upheld by the Fourth Circuit, and which the Supreme Court declined to review.
The brief points out, quite correctly, that some courts have applied historical analysis (the same means used by Justice Scalia in Heller), along with rigorous scrutiny, to uphold the right to carry, while other courts have applied a much more deferential standard, akin to rational-basis review.
Cato also argues that, "By upholding the statute, the Third Circuit approved the conditioning of the exercise of a fundamental right on a citizen's being able to prove, to a state official's discretionary satisfaction, the special need to exercise it."
Beyond: 9th Circuit's Peruta v. County of San Diego
Cato's rationale is echoed by the Ninth Circuit's panel opinion [PDF] from earlier this week, which, in essence, struck down California's "may issue" for cause concealed carry scheme. The split panel's opinion essentially held that, absent cause, that there is a right to either open or concealed carry.
Presently, in California, there is no open carry, and concealed carry is left to the discretion of local officials, some of whom haven't handed out permits in decades. Notably, the Ninth Circuit also employed a lengthy trip through the history books and 19th century case law to come to its conclusion.
Should the Court punt on both the NRA cases and the Third Circuit case, this decision will almost certainly be appealed to en banc, and then, regardless of outcome, to the Supreme Court, unless, of course, the Court issues controlling law in the interim.
- Time for the Supreme Court to Explain the Scope of the Second Amendment (Cato at Liberty)
- Amicus Brief Numbers: Quantity, Quality, and Influence (FindLaw's U.S. Supreme Court Blog)
- SCOTUS Sleeper: Speech Rights of Government Employees Returns (FindLaw's U.S. Supreme Court Blog)