THE BLOG
11/30/2012 01:08 pm ET Updated Jan 30, 2013

Two Federal Appeals Courts Put Limits on the Gun Rights

Militant gun advocates and firearms industry lobbies will be surprised to learn that there are indeed limits on the Second Amendment right to bear arms, and that there is no fundamental right to carry handguns in public.

  • New York can require applicants for concealed-carry gun license to articulate a need for self-protection distinguishable from that of the general community, as the Second Circuit U.S. Court of Appeals ruled on November 27. Kachalsky v. City of Westchester, No. 11-3642. A simple desire to carry a concealed weapon for self-protection isn't enough.
  • The U.S. government can prohibit gun dealers from selling handguns to minors, according to a Fifth Circuit ruling on October 25. See NRA vs. ATF, No. 11-10959. The NRA argued that 11,000 of its members, aged 18 to 21, were unjustly denied their Second Amendment right to buy guns. But the risk of violent crime committed by immature or thrill-bent youngsters is too great, the court said. So the government can prohibit gun sales to crazy people, criminals -- and kids.
Gun industry lobbies like the National Rifle Association and the Second Amendment Foundation have been suing states and cities across the country to push their agenda that the Second Amendment "does not stop at one's doorstep" and that there is an unlimited right to carry handguns in public. So far, they are shooting blanks.

Public Safety vs. Home Safety

The competing arguments in the legal war are (a) the government's right to protect public safety and prevent crime, versus (b) an individual's Second Amendment right to protect his home with a handgun.

The U.S. Supreme Court ruled in District of Columbia v. Heller in 2008 that Washington, D.C., cannot enforce a total ban on handguns in the home, and reiterated the point in McDonald v. City of Chicago in 2010. These decisions inflated the gun lobbies' sense of importance, and they began a well-funded effort to eliminate any limits on carrying a handgun.

In the New York case, five people who made no effort to comply with the license requirements argued that the Second Amendment right to bear arms was the same as the First Amendment right to free speech. In other words: if the government can't license the right to speak, New York cannot limit the right to carry a handgun. This hallucinatory argument went nowhere.

The federal appeals courts spelled out that the core protection in the Second Amendment is "the right of law-abiding, responsible citizens to use arms in the defense of the hearth and home." The New York law applies to handguns in public.

The Need to Show a Need for a Handgun

Outside the home, handgun rights have always been limited since colonial times "because public safety interests often outweigh individual interests in self-defense," the court said. The requirement to show "proper cause" for a handgun license has existed in New York since 1913.

Ironically, the plaintiffs could have easily gotten licenses by saying they wanted them for hunting or target shooting. But their blank assertion that they wanted a license "for self-protection" without further explanation is not supported by the Second Amendment.
  • Plaintiff Kachalsky baldly claimed the Second Amendment entitled him to a permit without any explanation.
  • Two others plaintiffs asserted they were citizens in "good standing" and had jobs -- and were thus entitled to get a handgun license.
  • Another said he was in the Coast Guard.
  • Another said that she was transgender female and was more likely to be the victim of violence.
The court didn't buy any of this nonsense. Their applications were all denied for failure to show any facts showing a need for self-protection distinguishable from anyone else.

The trend in the law is clear: there is no imaginary right to carry a handgun in any manner whatsoever for whatever purpose. The Second Amendment protects the right to have a handgun to protect your home. But once you step outdoors to government has a right to protect the general public and put limits on the Second Amendment.

Content concerning legal matters is for informational purposes only, and should not be relied upon in making legal decisions or assessing your legal risks. Always consult a licensed attorney in the appropriate jurisdiction before taking any course of action that may affect your legal rights.

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