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High court fight looms over right to carry a gun

By Mark Sherman

Associated Press

POSTED:
LAST UPDATED: 04:33 a.m. HST, Dec 16, 2012


WASHINGTON >> The next big issue in the national debate over guns — whether people have a right to be armed in public — is moving closer to Supreme Court review.

A provocative ruling by a panel of federal appeals court judges in Chicago struck down the only statewide ban on carrying concealed weapons, in Illinois. The ruling is somewhat at odds with those of other federal courts that have largely upheld state and local gun laws, including restrictions on concealed weapons, since the Supreme Court's landmark ruling declaring that people have a right to have a gun for self-defense.

In, 2008, the court voted 5-4 in District of Columbia v. Heller to strike down Washington's ban on handgun ownership and focused mainly on the right to defend one's own home. The court left for another day how broadly the Second Amendment may protect gun rights in other settings.

Legal scholars say the competing appellate rulings mean that day is drawing near for a new high court case on gun rights.

The appeals court ruling in Chicago came early in a week that ended with the mass shooting in Connecticut that left 28 people dead, including 20 children at an elementary school and the presumed gunman.

Laurie Levenson, a professor at the Loyola Law School in Los Angeles, said that along with thorny legal issues, "we have the overlay of these tragedies hitting us on a somewhat regular basis."

The author of a book that traces the battle over gun control in the U.S. said he thinks Supreme Court intervention is likely in the short-term. "Since the Heller case, the next great question for the Supreme Court to decide was whether there is a right to carry guns in public," said UCLA law professor Adam Winkler, whose book "Gunfight" was published last year.

Roughly 40 states make it easy for people to carry a gun in public. But in California, New York and a few other states, local and state regulations make it difficult if not impossible to get a license to carry a weapon. Illinois and the District of Columbia have been the only places to refuse to allow people to be armed in public.

"In some of our most populated states, the right does not exist either because it's completely forbidden or practically forbidden," said Alan Gura, the lawyer who won the Heller case at the Supreme Court.

Gun rights advocates and gun control supporters are as split over the issue of having guns in public as they were over whether the Constitution protected gun ownership at all — and along the same lines.

Jonathan Lowy, an attorney with the Brady Center to Prevent Gun Violence, said, "If law enforcement makes a determination that somebody would increase the danger to the public by carrying a loaded gun on the streets, then that person should not be carrying a loaded gun. Some people in the gun lobby want to tie the hands of law enforcement."

But Wayne LaPierre, chief executive officer of the National Rifle Association, said, "Clearly, the individual right under the Constitution does not apply only to your home. People have lives outside their home and the constitutional right applies outside their home."

Sometimes, LaPierre said, "The only thing to stop a bad guy with a gun is a good guy with a gun."

Judge Richard Posner of the 7th U.S. Circuit Court of Appeals employed similar reasoning in his majority opinion striking down the Illinois law. Posner said that threatening confrontations do not only or even principally occur at home. "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," the judge said.

He homed in on the distinction between inside the home and on the street in his questioning of another recent appeals court ruling that upheld New York's restrictive law on granting people permits to carry concealed weapons. A unanimous panel of the 2nd U.S. Circuit Court of Appeals said the requirement that people demonstrate a special need to carry a concealed weapon does not violate the Constitution.

"Our principal reservation about the Second Circuit's analysis is its suggestion that the Second Amendment should have much greater scope inside the home than outside simply because other provisions of the Constitution have been held to make that distinction," including the right to privacy that underlies the high court ruling striking down sodomy laws. "Well of course, the interest in having sex inside one's home is much greater than the interest in having sex on the sidewalk in front of one's home. But the interest in self-protection is as great outside as inside the home," Posner said.

In dissent, Judge Ann Williams said governments have a strong interest in regulating guns on the street. "It is common sense, as the majority recognizes, that a gun is dangerous to more people when carried outside the home. When firearms are carried outside the home, the safety of a broader range of citizens is at issue. The risk of being injured or killed now extends to strangers, law enforcement personnel, and other private citizens who happen to be in the area," Williams said.

Gura represents the challengers to the New York law and he said he will ask the high court to review the 2nd Circuit ruling. Illinois Attorney General Lisa Madigan has not yet said whether the state will ask the full 7th Circuit court to reconsider its ruling or appeal to the Supreme Court.

So far, the Supreme Court has turned down appeals asking it to say more about guns. But that reluctance might fade if the court were presented with a split between appeals courts, typically a strong factor in attracting the justices' interest.

The Second Amendment talks about "the right to keep and bear arms and it's as if some courts want to take giant eraser to the words 'and bear' and pretend that they're not there," said David Thompson, managing partner of the Cooper and Kirk law firm in Washington. Thompson represented some plaintiffs in the Illinois case.

Northwestern University law professor Eugene Kontrovich said the difference between the New York and Chicago courts over what it means to bear arms could be enough to persuade the Supreme Court to intervene.

Winkler, the UCLA professor, said he thinks the Illinois statute would fall if it were to put to a test at the Supreme Court, probably by the same 5-4 vote as in Heller. But it is hard to predict how the Supreme Court might rule on restrictions that fall short of an outright ban on the right to carry a loaded weapon in public for self-defense, he said.

"Public possession is a different issue than having a gun in your home," he said.







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bumba wrote:
Does anyone believe that ANY law is going to keep the guns out of the bad guys' hands? Pass a law and the bad guys are going to give their guns up? It's going to take a hundred years before you'd see any effect from such a law, after most the existing guns out there rust out and become inoperable. "Sometimes, LaPierre said, 'The only thing to stop a bad guy with a gun is a good guy with a gun.' " That is the truth. If only the police are allowed to carry weapons, then get more police. Instead of making the PRP pigs rich with this rail fiasco, use the money to secure our schools, man them with armed guards and protect our kids.
on December 16,2012 | 04:21AM
1local wrote:
if the teachers were armed in connecticut - at least they would have had a chance to defend themselves. the US government prefers the innocent to be unarmed and submissive to attackers - didn't we learn this from 911?
on December 16,2012 | 07:18AM
mrluke wrote:
A well thought out comment, 1local. I'm sure that one of those armed, grade school teachers would have immediately drawn her sidearm and returned fire!
on December 16,2012 | 07:31AM
nomakeshame wrote:
Really? If any of those pilots or flight attendants were armed and fired a shot and missed and instead punctured the cabin or the windows of the aircraft, what do you think would have happened? And the public being armed on flights? How many more hijackings you think are going to take place, instead of going to Las Vegas, you might find yourself on an unscheduled flight to China or South America.
on December 16,2012 | 08:13AM
SteveToo wrote:
NOthing would have happened. a small hole, are rushing out and the oxygen masks dropping down. What you think the plane gonna explode?????????????? The next couple of shots would have taken the bad guys out. And if an innocent person also was hit it would still be better than the whole plane going down and everyone being killed.
on December 16,2012 | 02:36PM
niimi wrote:
The risk would have been far too great. Imagine a school with, say, 30 classrooms--30 guns within reach of 700 elementary school children under the age of 11? I don't think so.
on December 16,2012 | 09:40AM
poidragon wrote:
1Local, you really don't get it do you? 9/11 did not occur because terrorist were armed with guns, instead they used something much larger and potentially more dangerous to attack with, Airplanes loading with fuel and passengers, to create a horrific scenario of devastation to hopefully break the moral of the American people! It did not work, and only showed how disgustingly lowdown and debased they are willing to become to wage their ridiculous 'holy war' on Westernized countries of the world!
on December 16,2012 | 10:20AM
star08 wrote:
Why not just legislate that any carried gun must be visible? No concealed guns.
on December 16,2012 | 07:39AM
Leinanij wrote:
Ah, the Old West again. I got my gun and I'll shoot you if you even go near your gun. Yeehaw!
on December 16,2012 | 10:44AM
soundofreason wrote:
http://columbia.wistv.com/news/crime/54379-deputies-store-clerk-fears-her-life-shoots-robbery-suspect
on December 16,2012 | 08:48AM
Dimbulb wrote:
It is next to impossible in Hawaii to get a concealed carry permit. So, the bad guy have guns and the good guys don't. The police don't protect you from the shooter. They arrive after you have been shot and find someone to identify you. Then they try to find the shooter. That doesn't do you any good because it's too late.
on December 16,2012 | 04:42AM
soundofreason wrote:
"So, the bad guy have guns and the good guys don't">>>> Let's just say......"some" of the good guys don't. Better to have to be judged by 12 than carried by 6.
on December 16,2012 | 07:31AM
false wrote:
If a person can pass the same back ground check, the same hours of classroom training, and pass the same practical training that a police officer receives... why shouldn't they be able to carry a firearm?
on December 16,2012 | 06:39AM
onevoice82 wrote:
I flnally agree with you!
on December 16,2012 | 09:12AM
kainalu wrote:
I fully support the 2nd Amendment, but I also advocate for common-sense gun-control. I don't believe the 2nd Amendment intended to allow Joe Six-Pack to drive down mainstreet with a 50-caliber machine gun mounted in the back of his pick-up truck, nor to allow Soccer-Mom Melanie to pack a loaded glock to a children's soccer game. And while there's still the enforcement side of any gun-control laws, having the law to begin with at the least makes it a crime. I can understand a "mom" in Connecticut owning a pistol, but why did she own an assault rifle - the primary weapon used that horrific day? While it might be a slippery-slope, it can be done with careful thought.
on December 16,2012 | 06:57AM
nitpikker wrote:
i agree with kainalu. the "gun nuts" would like to see this country turn back into the "wild west" again! ban assault guns and make it tougher, not easier, to get a gun!
on December 16,2012 | 07:48AM
niimi wrote:
I would nitpick at that last statement. Make it tougher for the criminals to get guns.
on December 16,2012 | 09:34AM
johncdechon wrote:
This comment has been deleted.
on December 16,2012 | 01:01PM
hawaiikone wrote:
Don't forget to remind him that if criminals ever would vote on an issue, it would be in support of more gun control.
on December 16,2012 | 03:11PM
hawaiikone wrote:
kainalu, at the soccer game you describe, if a nut were to open fire on the kids, a well trained "soccer mom" could bring the horror to an end long before 27 players and kids were murdered. There are many men and women, who while abhorring gun violence, still realize as long as our society continues to generate these "nuts", chose to remain very capable of protecting themselves and their families. We already have laws preventing Mr. Pack's activities, so your example, although obviously inflammatory, is moot.
on December 16,2012 | 10:08AM
niimi wrote:
I believe the High Court won't encroach on the 2nd amendment. This is not a political opinion, it is just the way the SC has always approached this matter. There needs to be a collective, nationwide movement to amend the U.S. Constitution to constrain the 2nd amendment. Otherwise, expect the status quo to persist.
on December 16,2012 | 08:26AM
Upperkula wrote:
I am a supporter of tighter gun control...I use two hands. I am also for CCW in Hawaii, you should be too.
on December 16,2012 | 08:29AM
niimi wrote:
LOL. That's a great line. I'm fairly neutral on this, but the statistics are staunchly supportive that CCW does reduce crime violent crime rates.
on December 16,2012 | 09:33AM
juke wrote:
whar is ccw?
on December 16,2012 | 11:49AM
niimi wrote:
The 2nd amendment actually says nothing about gun ownership, Back in the day militias were citizen armies, volunteer groups just as were firefighting units. The local armory was just like the local fire station. So "bear arms" didn't necessarily mean, "own arms".
on December 16,2012 | 09:38AM
hawaiikone wrote:
One of the most important aspects of the 2nd amendment is keeping a well armed citizenry able to throw off a repressive government, regardless if that government is from within or without. The principle has not changed, if free men are to remain free, they need the means to insure such freedom. Our founders understood that, and the passage of time has not lessened the importance of preserving that ideal.
on December 16,2012 | 03:22PM
poidragon wrote:
Sometimes, LaPierre said, "The only thing to stop a bad guy with a gun is a good guy with a gun." Then the question becomes, 'how do we identify the good guy with a gun from a bad guy with a gun?' Good guys don't go around wearing white, and bad guys don't go around in black like they do in the movies! Mr. Lapierre is stretching the interpretation of the Constitutions second amendment beyond it's defined parameters to make his argument; how many more children must die from gun violence before America wakes up from it's ghoulish fascination with guns that have nothing to do with protection of one's home!
on December 16,2012 | 10:11AM
Carang_da_buggahz wrote:
Right. And even stricter laws would have kept guns out of this madman's reach, right? Your naiveté is quite stunning.
on December 16,2012 | 10:46AM
soundofreason wrote:
Gun Ownership Mandatory In Kennesaw, Georgia --- Crime Rate Plummets tysk news ^ | 1997 | Baldwin Posted on Tuesday, April 17, 2007 9:29:03 AM by doug from upland Gun Ownership Mandatory In Kennesaw, Georgia Crime Rate Plummets by Chuck Baldwin The New American magazine reminds us that March 25th marked the 16th anniversary of Kennesaw, Georgia's ordinance requiring heads of households (with certain exceptions) to keep at least one firearm in their homes. The city's population grew from around 5,000 in 1980 to 13,000 by 1996 (latest available estimate). Yet there have been only three murders: two with knives (1984 and 1987) and one with a firearm (1997). After the law went into effect in 1982, crime against persons plummeted 74 percent compared to 1981, and fell another 45 percent in 1983 compared to 1982. And it has stayed impressively low. In addition to nearly non-existent homicide (murders have averaged a mere 0.19 per year), the annual number of armed robberies, residential burglaries, commercial burglaries, and rapes have averaged, respectively, 1.69, 31.63, 19.75, and 2.00 through 1998. With all the attention that has been heaped upon the lawful possession of firearms lately, you would think that a city that requires gun ownership would be the center of a media feeding frenzy. It isn't. The fact is I can't remember a major media outlet even mentioning Kennesaw. Can you? The reason is obvious. Kennesaw proves that the presence of firearms actually improves safety and security. This is not the message that the media want us to hear. They want us to believe that guns are evil and are the cause of violence. The facts tell a different story. What is even more interesting about Kennesaw is that the city's crime rate decreased with the simple knowledge that the entire community was armed. The bad guys didn't force the residents to prove it. Just knowing that residents were armed prompted them to move on to easier targets. Most criminals don't have a death wish. There have been two occasions in my own family when the presence of a handgun averted potential disaster. In both instances the gun was never aimed at a person and no shot was fired.
on December 16,2012 | 12:52PM
soundofreason wrote:
http://www.youtube.com/watch?v=hpBXkvigads
on December 16,2012 | 12:54PM
SteveToo wrote:
They will never get my guns. I'll pack them in grease and hid them in the hills before I turn any into the government.
on December 16,2012 | 02:34PM
ya_think wrote:
http://www.kgw.com/news/Clackamas-man-armed-confronts-mall-shooter-183593571.html
on December 16,2012 | 05:00PM
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