It’s debatable: Should Second Amendment protect right to carry firearms outside home?

In this week's "It's Debatable" segment, Rick Rosen and Charles Moster debate whether the Second Amendment protects the right to carry firearms outside the home. Rosen is the Glenn D. West Endowed Research Professor of Law at the Texas Tech University School of Law and a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston.

ROSEN 1

The Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Until 2008, virtually all federal courts held that the amendment did not protect an individual right; instead, it related only to the militia. To paraphrase one federal judge: while the courts have used some constitutional provisions as springboards for major social change, they have treated the Second Amendment like a senile relative to be cooped up in a nursing home until it quits annoying us.

The landscape changed in 2008 in the Supreme Court’s decision in District of Columbia v. Heller, in which it acknowledged for the first time that the Second Amendment protects an individual right to possess firearms unconnected with militia service. Two years later, in McDonald v. City of Chicago the Court held the Second Amendment applies to the states.

The Court’s holdings in Heller and McDonald were limited to the right to keep a handgun in the home for self-defense. The Court is currently considering whether the Amendment extends beyond the home. At issue is a New York law imposing a licensing scheme prohibiting ordinary, law-abiding citizens from carrying firearms for self-defense. The statute ignores the text of the Second Amendment, which not only guarantees the right to “keep” firearms, but also the right to “bear” them. At the time the Amendment was drafted, the term “bear” meant to carry, the same definition it has today.

The Supreme Court recognizes that the Second Amendment not only preserves the states’ militia, but also the individual right of self-defense. Given increased gun-related violent crimes in states like New York, the need for self-defense is greater on the streets than in the home. Gun-control measures like those in New York certainly do not deter criminals from bearing arms outside the home—only law-abiding citizens.

Regardless of how the Supreme Court decides, Texans will not be immediately affected given the state’s recently enacted liberal handgun-carry law. But a change in the political composition of the Texas government could result in the law’s repeal. Only if the Supreme Court rules that draconian limits on the right of citizens to carry firearms outside the home are unconstitutional will the right to bear arms be preserved.

MOSTER 1

The New York law at issue in the case before the Supreme Court is valid and constitutional. Such a restriction as the State of New York maintains is consistent with the definition and practice of the “right to bear arms” as employed in England and American colonies prior to the drafting of the Bill of Rights. The question before the Supreme Court is whether that right as embodied in the Second Amendment is absolute, and it most certainly is not.

For those readers who have followed this column over the many years, my position on this issue has certainly evolved to address the geometric rise in gun related violence in the United States. We have the second highest rate of gun deaths in the world with over 37,000 people murdered annually. The statistics also establish that those countries which have eliminated firearms across the board experience a de minimis incidence of murder, suicide, and accidental death. The usual rejoinder to negate gun control is that American cities which feature the most restrictive regulations like Chicago and D.C. also exhibit the highest number of homicides. The simple answer is that gun control effectiveness is correlated with the imposition of restrictions at the national level as employed in the UK and other countries which have almost eliminated the scourge of gun violence and death. I make the above point not to advocate for the universal elimination of firearms but to negate the principal objection to any implementation of restrictions which is factually and statistically erroneous.

The failure of the Supreme Court to uphold the constitutionality of the New York law would challenge the validity of other necessary restrictions including the prohibition of firearms at schools, hospitals, and even airports. Such is a legal pandora’s box not to be opened.

ROSEN 2

I fully agree with Charles about the disturbing trend of gun violence, but I disagree that prohibiting law-abiding citizens from exercising the right to bear arms in self-defense is an effective means of addressing the trend. First, when officials in many high-crime cities champion defunding the police, and the cities’ prosecutors display more empathy to criminals than victims, citizens have no choice but to secure the means to defend themselves. Curiously, some who embrace the concept of defunding the police have or procure private armed security.

Second, embracing a right to bear arms does not translate into successful challenges to prohibitions against carrying firearms in schools, hospitals, and airports. Indeed, the Supreme Court in Heller acknowledged that “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” are legitimate restraints on the right to keep and bear arms. For example, federal law prohibits carrying firearms in school zones.

Third, federal statutes exist to prevent dangerous persons from acquiring firearms. Specifically, the law forbids felons, fugitives from justice, drug addicts, the mentally ill, and those convicted of domestic violence (among others) from possessing firearms. I suggest that the U.S. Department of Justice prosecute persons who violate federal statutes prohibiting them from possessing firearms, particularly those in cities in which district attorneys decline to prosecute such offenses under state law or who refuse to seek state-prescribed sentence enhancements for using firearms in the commission of serious crimes.

Fourth, I disagree with Charles’ assertion that the right to bear arms does not encompass the right to carry them outside the home. The Second Amendment did not create the right to keep and bear arms, but merely enshrined a pre-existing right—notably, the 1689 English Bill of Rights, which preserved the right to having and using arms for self-defense. The need for self-defense does not only exist in the home, but also outside the home.

Finally, perhaps Charles is correct in noting that we might be safer if no private individuals had firearms; however, that is not the world in which we live. Only the repeal of the Second Amendment, and more importantly, a concerted, relentless, and uncompromising program to disarm Americans—especially those who flaunt the law—could achieve such a result. Neither event is ever likely to occur.

MOSTER 2

Tonight, as I craft my rejoinder to Professor Rosen’s missive in the wee hours of March 13, 2022, Americans are dying wholesale from gun violence as documented by the Pew Research Foundation. 2020 was a literal bloodbath with astounding increases in the rate of gun related murder. The total “represents a 34% increase from the year before, a 49% increase over 5 years, and a 75% increase over 10 years.”

If you live in the vicinity of a major city, you will likely descend into a hell hole which I have elucidated in extensive articles and publications. My prediction is that our already insolvent economy will experience an unprecedented hyper-inflation equivalent to the post-WW-1 German Weimar Republic. Do a quick google search and you will recall wheelbarrows of German currency required to buy a simple loaf of bread. I identified multiple causes for the collapse of the American economy including the already ruinous state of financial affairs, the economic damage wrought by the pandemic, and massive increase in federal spending. I didn’t foresee the Russian invasion of Ukraine which has led to gargantuan increases in gas prices and inflation (already at a 30-year high) spiraling everywhere you look.

If you add firearms to the above mix, the result will be an unmitigated and explosive nightmare for law abiding citizens who will ultimately be forced to defend their households as urban violence metastasizes like a Stage 4 Cancer. The fortunate will escape to communities surrounded by a private army paid for and sponsored by the largest corporations in America which I call “Corporate City States”. Everyone else will ultimately have to fend for themselves as the economy crashes around them. Welcome to the future.

Rick got it right in his statement, “Finally, perhaps Charles is correct in noting that we might be safer if no private individuals had firearms; however, that is not the world in which we live. Only the repeal of the Second Amendment, and more importantly, a concerted, relentless, and uncompromising program to disarm Americans—especially those who flaunt the law—could achieve such a result. Neither event is ever likely to occur.”

My critical qualification is that law abiding Americans must be allowed the protection under the Second Amendment to domestically bear arms and protect their homes. I do not advocate the repeal of the 2nd Amendment. Critically, firearms must be available for use in private militias which will offer the only real protection to defend against the coming influx of urban violence. And, yes, Rick is correct that there must be a “relentless effort” to disarm those who “flaunt the law”.

The NY case before the Supreme Court if declared constitutional will pave the way for confiscation of deadly weapons flaunted by gang violence in every major city in the United States while allowing the rest of us to amass the weapons required to protect our loved ones. Such restrictions would be analogous to radiation treatment of the body politic. It may be the only hope to avoid the cataclysm to come or at least give us a chance to defend ourselves from the onslaught of barbarism.

This article originally appeared on Lubbock Avalanche-Journal: It's debatable second amendment and firearms outside the home