Gun rights advocates who challenge limits on carrying weapons in public… (Alex Wong, Getty Images )
WASHINGTON — While Congress debates proposals for tighter gun regulation, the Supreme Court is weighing whether to consider striking down state laws that strictly limit who can carry a gun in public.
When the justices ruled in 2008 and 2010 that the 2nd Amendment gave people a right to keep firearms in their homes, it did not address whether they had a right to carry weapons outside the home.
Gun rights advocates have asked the court to strike down New York's law allowing officials to deny "concealed carry" permits to gun owners unless they can show a "special need for self-protection." They want the justices to rule that the 2nd Amendment gives law-abiding gun owners a right to be armed on the streets. An announcement from the court on whether it will hear the case could come Monday.
Justice Antonin Scalia, in his 5-4 majority opinion in the 2008 Heller case striking down a ban on handguns in the District of Columbia, described the 2nd Amendment as creating a "right to possess and carry weapons in case of confrontation."
Citing Scalia's words, gun rights advocates have mounted challenges to laws in seven states that routinely deny permits to gun owners who wish to carry loaded or unloaded guns with them. Typically, these laws say the gun owner must show a "proper cause" or "good cause" to obtain a permit. California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey and New York have such laws.
"This case could be more important than Heller," said UCLA law professor Adam Winkler. "The biggest unanswered question about the 2nd Amendment is whether people have a right to carry guns in public."
In December, the 7th Circuit Court of Appeals in Chicago struck down the Illinois law, the nation's strictest. That law was understood to bar all but police and security guards from carrying guns in public.
Judge Richard Posner said the Supreme Court had described the 2nd Amendment as conferring "a right to bear arms for self-defense," and if so, being armed is "as important outside the home as inside." The decision gave state lawmakers six months to craft a new law that would allow the carrying of guns in public in a way that is "consistent with public safety."
In November, however, the 2nd Circuit Court of Appeals in New York upheld that state's law, which is often described as the nation's second strictest. It authorizes gun owners to obtain permits to carry weapons in public, but only if they can convince a county official that they have "a special need" to be armed. Evidence of "good moral character" is not enough, nor is living or working in a "high-crime area," the judges said.
The appeals court rejected a constitutional claim brought by Alan Kachalsky and several other residents of Westchester County who were turned down for permits. The 2nd Amendment does not "call into question the state's traditional authority to extensively regulate handgun possession in public," the appeals court said.
Attorney Alan Gura, who won the 2nd Amendment rulings in the case from District of Columbia and the 2010 case from Chicago, appealed the New York case to the high court. He says the New York decision made the right to bear arms "practically worthless."
"If it is a constitutional right, you don't have to prove to the government that you are entitled to exercise your rights," he said.
If the justices vote to take up the appeal, the Kachalsky case will be heard in the fall.
But Winkler, the UCLA law professor, and others think the court may choose to put off a decision on the reach of gun rights. "Some of the justices may be hesitant to take a 2nd Amendment case while nerves are still raw from Newtown," Winkler said.
The December school shooting in Newtown, Conn., that killed 20 children and six adults has forced Congress to take another look at the nation's gun laws, and last week the Senate voted to begin debate on expanding the background checks required for purchasing a handgun.
If the justices deny the appeal in the New York case, it will not set a legal precedent, but it will be seen by some as allowing state and local officials leeway in deciding who can carry a gun in public.
But the continuing litigation will almost surely force the court to decide the issue in the next few years. In December, the 9th Circuit Court of Appeals heard challenges to the concealed-carry laws from two California counties and from Hawaii. Illinois Atty. Gen. Lisa Madigan has until May to decide whether to ask the Supreme Court to review the 7th Circuit decision striking down the state's ban on carrying guns in public.