Recently Judge Benson Everett Legg of Maryland became the first federal judge to hold there is a Second Amendment right to carry a gun outside the home. Only days before, Trayvon Martin, a Florida teenager, lay dead from a shooting that dramatically illustrates the price in lives we will pay if Judge Legg's renegade ruling becomes the law across the United States.
In 2008, in the Heller case, the conservative 5-4 majority of the Supreme Court reversed the Court's own longstanding precedent in holding that the Second Amendment guarantees an individual right to have a gun in the home for self-defense. Since that ruling, federal and state courts have issued at least 40 decisions refusing to extend the right to have a gun for self-defense outside the home.
These courts have been guided by the language of Justice Scalia's Heller majority opinion itself, which repeatedly emphasized that the right recognized was "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." The Supreme Court in Heller struck down the District of Columbia's ban on the mere possession of handguns and ordered the District to permit Mr. Heller "to register his handgun and . . . issue him a license to carry it in the home."
Judge Legg's ruling not only diverges from the holdings of other federal and state courts, but it also is in direct defiance of the federal appeals court that establishes binding law for lower court judges like him in Maryland and four other states. In a case decided one year ago, the U.S. Court of Appeals for the Fourth Circuit upheld the conviction of a defendant for possessing a loaded handgun in a motor vehicle within a national park. He was convicted before the prohibition of loaded guns in national parks (initiated by the Reagan Administration) was repealed. In that opinion, by a 2-1 vote, a panel of the Fourth Circuit refused to go beyond Heller to extend the Second Amendment right outside the home. Instead, Judge J. Harvie Wilkinson, a judicial conservative who was on the short list for the Supreme Court during the Bush Administration, decided it would be "prudent to await direction from the [Supreme] Court itself" before making the quantum leap to recognizing a new right to be armed in public places. In exercising such prudence, Judge Wilkinson gave an eloquent defense of judicial restraint on issues, like gun regulation, with life and death consequences.
In words that now seem prescient, he described his worst fear: "This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights. It is not far-fetched to think the Heller Court wished to leave open the possibility that such a danger would rise exponentially as one moved the right from the home to the public square."
The killing of Trayvon Martin is exactly the kind of "unspeakably tragic act of mayhem" that arises from the right to be armed in public places. George Zimmerman, 28 years old, had obtained a license to carry concealed from the State of Florida, which has become infamous for handing out such licenses to very dangerous people. Zimmerman apparently was a neighborhood watch captain who had called police around 7:30 on the night of February 26 to report a "suspicious person," who turned out to be Trayvon Martin. Zimmerman was armed with a Kel-Tec 9mm semi-automatic pistol. He was told by the police dispatcher to wait for patrol officers. He ignored their counsel. Instead, Zimmerman followed Martin, got out of his car, and some kind of altercation occurred, during which Martin was shot dead. It turns out that Martin was returning from a 7-11 store where he had purchased snacks for his step-brother. He was armed only with a bag of Skittles and an iced tea.
The full facts about this incident are still emerging. But one thing seems clear. If George Zimmerman had not been carrying a gun, it is likely Trayvon Martin would be alive today. Surely the gun played a role in Zimmerman's fateful decision to ignore the advice of the police dispatcher to wait for the arrival of patrol officers. Absent the gun, whatever fight occurred between Martin and Zimmerman likely would not have resulted in a fatal injury.
The wisdom of Judge Wilkinson's remarks can receive no stronger support than the tragedy of Trayvon Martin. Instead of understanding and enforcing that wisdom, as he was obligated to do by his duty as a lower court judge within the Fourth Circuit, Judge Legg defied it. Told by the Fourth Circuit that any extension of the Heller right beyond the confines of the home must "await guidance from the nation's highest court," Judge Legg took it upon himself to fashion a new and broader right to be armed. He did so despite the Circuit Court's warnings about the risk that the public safety threat may "rise exponentially as one moved the right from the home to the public square." Such arrogant defiance of a higher court ought to meet anyone's definition of improper judicial activism.
In fashioning a right to be armed in public out of whole cloth, Judge Legg struck down Maryland's entirely sensible requirement that, to carry a concealed weapon, one must show a "good and substantial reason" to be armed. Had he been a Marylander, it is unlikely George Zimmerman would have satisfied that standard. When it loosened its requirements for concealed carry in 1987, Florida made a terrible mistake. The result is that trigger-happy individuals like George Zimmerman have been emboldened to impose their own death sentences on persons they believe are acting "suspicious."
Maryland and other states with more restrictive laws have chosen not to make Florida's mistake. Their choices should be respected by the courts. Nothing in Heller, or in the Constitution, suggests otherwise.
For more information, see Dennis Henigan's Lethal Logic: Exploding the Myths that Paralyze American Gun Policy (Potomac Books 2009)