The Second Circuit Court of Appeals has handed a defeat to prominent constitutional attorney Alan Gura, who was challenging New York’s requirement that applicants for a license to carry demonstrate a special need for the license. The court opinion (which can be read in its entirety here) finds that outside the home, in public, the right to bear arms is subject to intermediate scrutiny, and New York’s denial of licenses to persons who cannot demonstrate a particular, immediate threat to their lives and safety is a reasonable restriction that is substantially related to a compelling government interest. The court gave two examples by analogy of conduct that is constitutionally protected inside the home but not permitted outside the home, possession of obscene materials and homosexual sodomy, which gives you some idea of the distaste with which these particular three federal appellate judges on this panel view the act of carrying a weapon in public.
In defending their reasoning on this issue, the judges on this court cite a long list of restrictions that existed in various states on carrying concealed weapons in public in the early nineteenth century. As most students of history are aware, concealed carry was frowned upon in colonial America and the early republic, and many states banned concealment of a weapon. Carrying openly, however, was viewed universally as the right of any citizen who was not a slave. This fact is not mentioned or discussed in the court’s opinion, but it is rather shocking and surprising that the court, on page 35, mentions Georgia as a state where the sale of concealable weapons was banned entirely.
For instance, Georgia criminalized the sale of concealable weapons, effectively moving toward their complete prohibition. Act of Dec. 25, 1837, 1837 Ga. Laws at 90 (protecting citizens of Georgia against the use of deadly weapons).
Simply quoting the passage of this law, however, tells an incomplete and misleading story. While it is true that the Georgia legislature did indeed pass such a law, it was immediately challenged and struck down with respect to carrying weapons openly in the only reported case dealing with the issue.
You may read the case of Nunn v. State for yourself by clicking here, but the short version is that the Supreme Court threw out the indictment against Nunn because he was carrying a pistol in his hand, openly, and the Georgia court declared that the law being discussed by the Second Circuit violated the right to bear arms.
Nor is the right involved in this discussion less comprehensive or valuable: “The right of the people to bear arms shall not be infringed.” The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans, plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.
In short, it is disingenuous for the court to claim that a Georgia law was effectively a “complete prohibition” without pointing out that the law was stricken as violating the right to bear arms, especially when the court is misusing this historical Georgia law to undercut the right to bear arms. According to the Second Circuit, the right to bear arms outside the home exists only at the discretionary permission of the proper authorities in New York, and then only if one can demonstrate a special threat to his or her life.
Georgia history and law should not be misused in this fashion.
For further information on this case and the background of the three judges involved in the opinion, see Dan’s article here, Anti-Gun Federal Panel Torpedoes Right to Carry in New York.