Recall that last November the 2nd Circuit upheld a New York law requiring those who want to carry handguns to show “a special need for self-protection.”
There is an underlying problem with this. The Federal Constitution does not allow the Federal government to decide the purposes for which it will permit citizens to “keep and bear arms.” The Constitution requires the Federal government not to infringe citizens’ right to keep and to bear, period. There is no “except for when the government deems otherwise” caveat; the clause reads the right of the people to keep and bear Arms, shall not be infringed.
This also is clear from the authors’ understanding of the terms of relevance here: from the 10th edition of Johnson’s Dictionary we have: Infringe: 1. To violate; to break laws or contracts. 2. To destroy; to hinder. That definition has not changed much, if at all, in the intervening more than one hundred years since the Constitution was written.
Additionally, the right to keep must mean the right to bear anywhere, else the keeping has no import. Moreover, the right to bear is as explicitly stated in the Clause as is the right to keep, and that right has no limit on where stated, and so there is no limit.
On top of that, in A well regulated Militia, being necessary to the security of a free State, “State” refers to the constituent States of the United States, not to the United States itself. Again, the Federal government has no say.
Finally, Heller and McDonald made explicit the extension of these 2nd Amendment clauses to the inside of the individual States—all of them.
It should be clear, then, even to a New York-based 2nd Circuit, that the government has nothing to say on the purpose a private citizen, of any State or of the United States, might have for possessing or carrying about his privately owned weapon. Indeed, as Judge Richard Posner of the 7th Circuit notes, a citizen’s need can be acute everywhere, and with particular reference to “a special need for self-protection,” Posner had this in his opinion in Moore v. Madigan:
Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.
It’s certainly true that some reasonable State-level (but not Federal) limits on the where might be applied. It’s reasonable, for instance, to uphold the right of a private business owner to bar weapons from his establishment. It’s reasonable for a State to bar private citizens’ weapons from a courtroom. It’s reasonable for a State to bar the bearing anywhere (and so to bar the keeping) by those convicted of violent crimes. It’s reasonable for a State to bar the bearing in public by any other citizen absent that citizen’s possession of a license demonstrating his understanding of the handling and maintenance of his weapon.
But there’s very little else that a government might do to inhibit those 2nd Amendment rights.
