In 2008 the U. S. Supreme Court decided District of Columbia v. Heller, overturning the handgun ban in Washington D. C. under its federal enclave jurisdiction. In 2009, Congress passed legislation, signed by President Obama, that allows guns in national parks. The Supreme Court, on this year’s docket, is considering, and will soon issue an opinion, on extending Heller to state and local laws in McDonald v. City of Chicago, challenging Chicago’s handgun ban.
At the same time individual states are expanding gun rights. As of August 2009, fifteen states had “open carry” laws allowing citizens to carry firearms openly in public. Eleven of those allow open carry without permits. Guns have been openly on display at political rallies across the country, complete with threatening placards in some cases. The latest gun rights expansion is taking place in the form of doing away with licensing requirements for the carrying of concealed weapons. To date, three states have adopted laws permitting the carrying of concealed firearms without a permit.
The Second Amendment of the Constitution reads,
“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.“
The Supreme Court has determined that the right to keep and bear arms in the Second Amendment is an individual right, not reliant on the prefatory language contained in the militia clause.
But all rights have limits, usually based on government’s need to protect public health and safety. Freedom of speech, an unequivocal guarantee in the First Amendment does not extend to child pornography or speech that endangers others. Freedom of religion does not extend to human sacrifice or marrying off 13 year old girls to 50 year old men. Protections against personal searches do not extend to boarding an airplane. In the view of the courts that interpret the Constitution, generic individual rights give way to the overarching public good where government has a legitimate and compelling interest in public health and safety. One need not agree with that approach, but it is the approach used by our courts since the founding of the Republic.
As Justice Scalia said in the Heller case, “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Scalia did not comment specifically on open carry or concealed carry laws.
Heller leaves open the question of how far is too far, i.e. at what point is firearm regulation permissible or even necessary. McDonald v. Chicago is unlikely to address the issue as its principal question is whether to apply Heller to the states.
From this author’s generally pro-gun perspective, the tipping point may be open carry and concealed carry without requiring a permit to do so. Traditionally, carry permits, open or concealed, required the prerequisite of certification of completion from a firearms safety class as well as a background check. Allowing the general citizenry to roam about with guns openly displayed or concealed, and unlicensed, is a step too far.
For some, carrying a handgun is a useful safety precaution. That some others think it’s cool or macho to carry a handgun is understandable at some level. But that a certain percentage, with anger control problems and mental health issues, perhaps even law enforcement involvement, sans felony record, may choose to “carry” without the rigor of a permit-process background check creates a public safety hazard. How rigorous that process is may be in dispute or vary from state to state, but it provides some protection, and many with iffy backgrounds would choose not to apply for a permit if there were such a check in place, and would therefore not carry publicly.
The need for firearm safety training is as obvious as the daily news. Plexico Burris, star football player, shot himself in the thigh as a result of a concealed carry. The handgun in his waistband was slipping. When he reached to grab it, he shot himself (the safety was off). It could have easily been an innocent bystander being wounded or killed by that lapse in safety. Other, less publicized, accidental shootings are daily fare.
Whatever one thinks of the open carry or concealed carry of firearms, the permit process, with its required background check and certification of firearm safety training, is neither so intrusive nor so difficult that it should be considered too much to ask for the safety of the public. Gun owners have rights, but so does everyone else.
UPDATE: With gun rights rallies around the country today seeking to expand gun rights even further, the Wall Street Journal reports that many of the factional elements of the pro-gun movement are going beyond the tether of the National Rifle Association. Many like the group “Restore the Constitution” are taking positions demonstrating their belief that the NRA is not sufficiently aggressive in pushing forward the gun rights agenda.
From the WSJ story:
The 4.3 million-member NRA, one of the most powerful and well-funded lobbying groups in Washington, has for 35 years dominated the push to expand gun rights.
But its strategies aren’t aggressive or imaginative enough for some gun owners who want to openly carry holstered pistols in public places, or to exploit loopholes in state gun laws to purchase semi-automatic rifles.
…
“More and more the gun-rights movement is moving toward a stand-up-and-shout approach,” said Jeff Knox, director of the Firearms Coalition, a for-profit, loose-knit coalition of activists. “There’s a lot of general frustration with NRA not taking a hard enough line.”
[Author’s Note: the photo above is titled “Open Carry Picnic”.]
Cross Posted at Elijah’s Sweete Spot, where COMMENTS/DISCUSSION are Disqus™ enabled.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.