The Heller Decision & Open-Carry

[Charles L. Cotton]

There seems to be a great deal of misunderstanding concerning the impact of the U.S. Supreme Court's decision in Heller on open-carry. Some people seem to believe that Heller established a constitutional right to open-carry. This belief appears to be rampant on OpenCarry.org.

The Supreme Court's decision in Heller is limited solely to its "holding" as set forth on page 64 of the opinion:

64 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
In sum, we hold that the District’s ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home.
* * *
We are aware of the problem of handgun violence in this
country, and we take seriously the concerns raised by the
many amici who believe that prohibition of handgun
ownership is a solution. The Constitution leaves the
District of Columbia a variety of tools for combating that
problem, including some measures regulating handguns,
see supra, at 54–55, and n. 26. But the enshrinement of
constitutional rights necessarily takes certain policy
choices off the table. These include the absolute prohibition
of handguns held and used for self-defense in the
home. Undoubtedly some think that the Second Amendment
is outmoded in a society where our standing army is
the pride of our Nation, where well-trained police forces
provide personal security, and where gun violence is a
serious problem. That is perhaps debatable, but what is
not debatable is that it is not the role of this Court to
pronounce the Second Amendment extinct.
We affirm the judgment of the Court of Appeals.
It is so ordered.

The Heller decision is great in that it recognized the Second Amendment as an individual right. It's holding beyond that is quite narrow. It held that 1) an absolute ban on handgun ownership in one's home violates the Second Amendment; and 2) a requirement to disable one's home defense firearm violates the Second Amendment. The only reference to "carrying" a handgun in the Court's "holding" is a requirement that D.C. issue a permit to Mr. Heller allowing him to carry it in his home not outside his home. Recall that even if a resident had registered a handgun prior to 1976, they could not "carry" it from one room in their home to another without a carry permit. (Yes, it was that absurd.) This is the only reason the Supreme Court addressed "carrying."

The majority opinion does contain great dicta to indicate that, with a proper future case, and with the current majority, it may well rule that there is a right to carry a handgun. But dicta isn't part of the Court's holding. This is something that OpenCarry.org folks don't seem to understand. It does not help the Second Amendment or expansion of Heller to overstate the Court's holding. It's also unfair to the general gun-owning public when you mislead people about the scope of the holding.

Chas.

[Sangiovese]

Thanks Chas. I had been wondering about that.

On a related note, it seems to me that another important component of the ruling is that the majority opinion clearly stated that self defense is a legitimate protected use for firearms. That shoots a hole in the old argument that the gun grabbers use when they say they "don't want to take away your guns used for hunting and legitimate sporting events... just those evil handguns" when they try to ban handguns that are well suited to personal defense.

Sorry if that's a hijack... I just get warm and fuzzy when talking about Heller - and I am very interested in the ancillary effects of the ruling.

[casingpoint]

The Supremes sure beat around the bush with all that unsubstantiated dicta in Heller. Which has now already been used once by one lower court in an opinion.

Why the Ninth Amendment would have been a better venue for the constitutionality of gun rights:
http://www.guncite.com/journals/nj9th.html" onclick="window.open(this.href);return false;

What's wrong with the Heller decision:
http://papers.ssrn.com/sol3/papers.cfm? ... id=1324757" onclick="window.open(this.href);return false;

[Charles L. Cotton]

Thanks Chas. I had been wondering about that.

On a related note, it seems to me that another important component of the ruling is that the majority opinion clearly stated that self defense is a legitimate protected use for firearms. That shoots a hole in the old argument that the gun grabbers use when they say they "don't want to take away your guns used for hunting and legitimate sporting events... just those evil handguns" when they try to ban handguns that are well suited to personal defense.

Sorry if that's a hijack... I just get warm and fuzzy when talking about Heller - and I am very interested in the ancillary effects of the ruling.

You are exactly right. Prior to Heller, I used to ask many an audience to raise their hand if they believed there was a "right to self-defense" and the vast majority responded yes. Then I'd drop the bomb that in fact there was no "right" to self-defense, at least no Texas court had so ruled, nor had the US Supreme Court. This changed dramatically with Heller. The Heller Court clearly referenced a "natural right of self-preservation" several times while examining the decisions from various state supreme courts (not Texas). This is one very strong reason why I believe a future case, with the correct majority on the Court, will hold there is a right to carry handguns for self-defense. How can the Court recognize self-defense as a "natural right," but deny a citizen the "quintessential" tool (handgun) for self-defense? Unfortunately, the Heller decision appears to allow a licensing requirement, so long as it is not arbitrary and excludes only those who are "not disqualified from exercising Second Amendment rights[.]"

Chas.

[frazzled]

Thanks Chas. I had been wondering about that.

On a related note, it seems to me that another important component of the ruling is that the majority opinion clearly stated that self defense is a legitimate protected use for firearms. That shoots a hole in the old argument that the gun grabbers use when they say they "don't want to take away your guns used for hunting and legitimate sporting events... just those evil handguns" when they try to ban handguns that are well suited to personal defense.

Sorry if that's a hijack... I just get warm and fuzzy when talking about Heller - and I am very interested in the ancillary effects of the ruling.

You are exactly right. Prior to Heller, I used to ask many an audience to raise their hand if they believed there was a "right to self-defense" and the vast majority responded yes. Then I'd drop the bomb that in fact there was no "right" to self-defense, at least no Texas court had so ruled, nor had the US Supreme Court. This changed dramatically with Heller. The Heller Court clearly referenced a "natural right of self-preservation" several times while examining the decisions from various state supreme courts (not Texas). This is one very strong reason why I believe a future case, with the correct majority on the Court, will hold there is a right to carry handguns for self-defense. How can the Court recognize self-defense as a "natural right," but deny a citizen the "quintessential" tool (handgun) for self-defense? Unfortunately, the Heller decision appears to allow a licensing requirement, so long as it is not arbitrary and excludes only those who are "not disqualified from exercising Second Amendment rights[.]"

Chas.

I doubt SCOTUS will touch whether there is an inherent right to self defense. Frankly I think we've seen the high point of SCOTUS protection of the 2nd Amendment. The future will be as the past - ignoring restrictions put in place by the Fed and local jurisdictions. We're not exactly seeing a tidal wave of restrictive legislation being overturned.

[Charles L. Cotton]

. . . Frankly I think we've seen the high point of SCOTUS protection of the 2nd Amendment. The future will be as the past - ignoring restrictions put in place by the Fed and local jurisdictions. We're not exactly seeing a tidal wave of restrictive legislation being overturned.

You may be right about the high point, but that will depend on the make-up of the Court in coming years. You very rarely see a Supreme Court ruling result in a tidal wave; change comes gradually as opinions are fleshed out. The danger to progress is overstating the scope of a Supreme Court opinion and filing ill-advised lawsuits, or asserting dangerous constitutional grounds in criminal cases. No one likes "slow," including me. But a slow pace that is successful is preferable to a quick loss or setback.

Chas.

[casingpoint]

I doubt SCOTUS will touch whether there is an inherent right to self defense.

Scalia wrote extensively about it in the Heller opinion. That's all the lower courts need to hear before they get on the bandwagon, right or wrong.

And the Court specifically held the individual right to posses a firearm is protected when used for things like self defense within the home. That's getting pretty warm.

Three different Washington, D.C. gun regulations were struck down by SCOTUS in Heller as unconstitutional. While the opinion stated not all regulation of firearms is illegal, it does seem the door has been opened wide to contest the validity of almost any restrictive laws. Other than possession by felons and misfits, the Court didn't offer much in the way of other legal restrictions. It was pretty weak on the legalities of concealed carry, also.

[frazzled]

At the same time Chicago's, California's, and NY haven't been touched. Until that happens, I'm not buying it.

[stevie_d_64]

I used to ask many an audience to raise their hand if they believed there was a "right to self-defense" and the vast majority responded yes. Then I'd drop the bomb that in fact there was no "right" to self-defense, at least no Texas court had so ruled, nor had the US Supreme Court.

I wish you had done that this year up in Mesquite...

Thats why I don't ever raise my hand in "class" anymore...I just reside myself to take good notes, and not let anyone know how ignernt I really am...

[stevie_d_64]

While the opinion stated not all regulation of firearms is illegal...

I had a really big rub about that myself...How can it truely be an individual right if the government still wants to infringe by regulating the "what" you may posess, carry etc etc



But what do I know...