The Second Amendment Protects Both Keeping and Bearing Arms

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Ilya Shapiro
cato.org
February 12, 2013

Even before its recent enactmentof ill-advised and (at least partially) unconstitutional gun-control measures, New York was no stranger to draconian restrictions on the right to keep and bear arms. The Empire State, like most states, requires a license to carry a handgun outside of one’s home, but differs from many by requiring prospective licensees to show “proper cause” before obtaining a license. State officials have broad discretion in finding such proper cause, which for non-celebrities typically requires proof of extraordinary personal danger documented by threats to one’s life — effectively leaving criminals, bodyguards, and retired law enforcement officers as the only armed civilians in public places.

Unable to make such a showing and thus denied licenses, a diverse group of New Yorkers, represented by Alan Gura — who successfully argued District of Columbia v. Heller (2008) and McDonald v. Chicago (2010) at the Supreme Court — filed suit in federal court challenging the constitutionality of the licensing scheme. Both the district court and the U.S. Court of Appeals for the Second Circuit upheld the law after purportedly applying “intermediate scrutiny,” which allows a challenged statute to survive only if it is “substantially related to the achievement of an important governmental interest.”

But the Second Circuit gave short thrift to the Second Amendment, treating New York’s restrictions as garden-variety legislation rather than measures infringing on a core constitutional right. In legal terms, the court effectively employed “rational-basis review,” which simply requires legislation to be rationally related to a legitimate government interest. Instead of requiring the state to show that its restriction on carrying firearms for basic self-defense has some concrete connection to public safety and crime prevention, the court deferred to the political branches by finding that assessing “the risks and benefits of handgun possession” and creating licensing schemes are “precisely the type of discretionary judgment[s] that officials in the legislative and executive branches of state government regularly make.”

The plaintiffs have now asked the Supreme Court to review that ruling and provide guidance to all lower courts regarding how to evaluate laws in tension with the Second Amendment. Today, Cato filed a brief supporting that petition. Like any constitutional right, the Second Amendment has no force absent a clear jurisprudential doctrine that ensures its enforcement. While the Second Circuit has applied a very deferential standard, other courts have expounded different doctrines since the Supreme Court ruled in Heller that the Second Amendment protects an individual right. For example, the Chicago-based Seventh Circuit demands that a restriction on Second Amendment rights satisfy a heightened level of scrutiny that requires “an extremely strong public-interest justification and a close fit between the government’s means and its end.” Given divergent lower-court rulings and the current political climate, the Second Amendment is in dire need of a clarified and robust standard of review — much like that afforded other constitutional rights, requiring federal and state governments to prove that laws infringing those rights are narrowly tailored to serve a compelling interest. Whatever the standard of review may ultimately turn out to be, Kachalsky v. Cacacse provides an excellent vehicle for the Supreme Court to pronounce it — and to show that the Second Amendment protects more than the right to keep a gun in one’s home.

This article was posted: Tuesday, February 12, 2013 at 11:49 am

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