High court may decide on carrying guns outside home

Richard Wolf, USA TODAY | USATODAY

WASHINGTON — Guns are on the docket in Congress and dozens of state legislatures. Can the Supreme Court be far behind?

The court may decide as early as Monday to consider whether the Second Amendment's right to keep a gun for self-defense extends outside the home.

The case under consideration is a challenge to New York's law that requires "proper cause" to carry a weapon in public. Ten states, including California, New Jersey, Massachusetts and Maryland, have similar restrictions. Most have been challenged in court.

Whether it grants the petition from New York or waits for another case, the court is virtually certain to weigh in soon. That's because lower federal courts have issued split decisions on state laws designed to restrict the prevalence of handguns on the streets.

"It's only a matter of time before the court decides whether people have a right to carry guns in public," says Adam Winkler, a UCLA law professor and author of Gunfight: The Battle over the Right to Bear Arms in America. "This is the biggest unanswered question about the Second Amendment."

The requests for high-court review come as federal and state lawmakers are considering new gun laws in the wake of December's killing of 26 students and staff members at Sandy Hook Elementary School in Newtown, Conn. The murders by a lone gunman have boosted public support for gun controls.

While 17 states have passed new laws since the Newtown shootings and Congress is considering national legislation, most of the court action is in the other direction — challenges by firearms groups to state restrictions.

The challenges are a natural outgrowth of the Supreme Court's 2008 decision in District of Columbia v. Heller, which upheld the right to possess firearms in the home for self-defense but left a wide berth for restrictions.

"Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms," Justice Antonin Scalia wrote for the court's 5-4 majority.

Heller clearly wasn't the final word on the Second Amendment. In fact, the New York appeals court ruling upholding the state's law said it "raises more questions than it answers."

Asked recently whether the Second Amendment's right to bear arms is as unequivocal as the First Amendment's right to free speech, Scalia said, "We're going to find out, aren't we?" — an indication he expects the court to hear a gun rights case in the near future.

"There are doubtless limits (on gun rights), but what they are, we will see," Scalia said.

Most of the lower-court cases involve laws that require applicants to demonstrate a particular need for a permit to carry guns in public. State officials contend street crime is more prevalent than inside private homes. Opponents say the restrictions render the Second Amendment impotent.

Perhaps the biggest battle is in Illinois, the only state (along with the District of Columbia) to prohibit carrying concealed weapons under most circumstances. A federal district court upheld the ban, but a three-judge panel of the 7th U.S. Circuit Court of Appeals struck it down.

"The right to 'bear' as distinct from the right to 'keep' arms is unlikely to refer to the home," Judge Richard Posner ruled in December. "A right to bear arms thus implies a right to carry a loaded gun outside the home."

The state has yet to appeal that decision. Its attorney general, Lisa Madigan, is considering a run for governor, and while a Supreme Court challenge might be popular in Chicago, it could run afoul of gun enthusiasts in rural Illinois.

Petitions from state governments usually carry more sway with the high court than others, so the justices may decide to wait for that case. It also would present them with a more narrow question to resolve, rather than addressing lesser restrictions in 10 states from New England to Hawaii.

Another strike against the New York case is that it comes from the 2nd Circuit Court of Appeals, which has jurisdiction over Connecticut, where the Newtown shootings occurred. That could make it an awkward case for the high court to hear.

The New York attorney general's office argues in its brief to the Supreme Court that the lower-court decision should stand. The state has a "compelling interest in public safety and crime prevention" that makes gun regulation necessary, it says.

Those challenging the New York law argue that as a result, the right to bear arms is "illusory." Their brief to the Supreme Court contends that such a restriction hasn't been placed on the freedom of speech, worship — or even abortion.

"The New York law is in complete conflict with the idea that people enjoy a Second Amendment right to bear arms," says Alan Gura, the lawyer for the plaintiffs, who successfully argued the Heller case. "If this can be done to the Second Amendment, look out."

Proponents of gun control note that most appeals-court decisions have upheld state restrictions. The Illinois case, they say, applied to the lone state with a full ban rather than limits on who can be licensed.

"There is no suggestion in the Supreme Court's Second Amendment cases that there is a broad right to carry guns in public," says Jonathan Lowy, director of the Legal Action Project at the Brady Center to Prevent Gun Violence.

One way or another, most Supreme Court experts say, the justices cannot avoid the issue because of varying opinions coming out of the lower courts.

"There really is a circuit split out there," says Paul Clement, the former U.S. solicitor general, who represents the National Rifle Association on this and other Second Amendment cases. "They're eventually going to have to take it."