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SHAPIRO: Lifting the right to carry firearms

- - Monday, September 30, 2013

Earlier this month, the Illinois Supreme Court struck down a state ban on carrying a firearm in public.

The Sept. 12 state decision, in Aguilar v. Illinois, echoes a 2012 ruling already handed down by the 7th U.S. Circuit Court of Appeals, in Moore v. Madigan, which reaffirms that the right to bear arms means a person can carry a firearm in public for self-defense.

The ruling is significant because although the U.S. Supreme Court ruled in both Heller v. District of Columbia in 2008 and in Chicago v. McDonald in 2010 that there was a guaranteed right to keep and bear arms for self-defense, gun-control advocates have tried to limit that right to one's home.

Justice Robert R. Thomas of the Illinois Supreme Court eloquently explained the current legal state of affairs in Aguilar:

"Despite their lengthy historical discussions concerning the scope and meaning of the Second Amendment, neither Heller nor McDonald expressly recognizes a right to keep and bear arms outside the home. Rather, the core holding of both cases is that the Second Amendment protects the right to possess a handgun in the home for self-defense."

The issue of carrying a firearm outside the home has quickly become controversial issue in Illinois where, as the 7th Circuit put it, state statutes are effectively "a flat ban on carrying ready-to-use guns outside the home." Chicago, like Washington, D.C., has been one of the most severe enforcement zones of gun control in the United States.

Although the right to carry has not been guaranteed by the U.S. Supreme Court yet, both the 7th Circuit's 2012 ruling and the recent Illinois Supreme Court ruling demonstrate a consistent judicial pattern that is setting the tone for a future, binding decision in Washington.

The original 7th Circuit decision gave Illinois until July 2013 to draft a new law that protected the right to carry, and the state complied. However, the state has until January 2014 to prepare actual permits for residents to carry weapons in public, and so far, no permits have been issued.

Alan Gottlieb, founder of the Second Amendment Foundation, a Washington state-based firearms advocacy organization said that the Illinois Supreme Court ruling was significant because state officials argued that the 7th Circuit federal ruling was not binding in state courts.

"We may have this problem in the future as well," Mr. Gottlieb told The Times in a telephone interview. "If it's a state law, they may not want to be bound by the federal circuit rulings, but as it goes up the ladder at some point they're going to be binding. The Aguilar decision is extremely important to the gun rights movement because it sends a message to other courts all across the country that Heller and McDonald mean what they say."

The Aguilar case expressly elicits what Heller and McDonald do not — that the right to bear arms means that one can, in fact, carry a weapon outside the home.

Justice Clarence Thomas noted that in the Heller case, the court guaranteed the individual right to possess and carry weapons in case of confrontation, and explained that although the Heller court noted that "the right to self-defense is most acute in the home," that does not mean that confrontation cannot be acute outside the home.

Justice Thomas also explains this in constitutional terms by examining the specific text of the Second Amendment. He distinguishes the right to "keep arms" from the right to "bear arms," saying that they are not one in the same.

The right to keep arms means one has a right to keep a firearm in one's home. The right to bear arms "implies a right to carry a loaded gun outside the home."

Justice Thomas mused, "To speak of 'bearing' arms within one's home would at all times have been an awkward usage."

Awkward is putting it mildly. There aren't a whole lot of people out there that would load up a rifle or a side arm so they can "bear arms" while they march back and forth in their living room.

Bearing arms clearly means to carry, precisely because one is leaving home and wants to maintain a sense of security.

From the beginning, gun-control advocates have used an Orwellian reverse logic to prove that the Second Amendment was a "collective right" as opposed to an individual right, even though there is no such thing as a "collective right" in any other part of the Bill of Rights.

That just doesn't add up.

The message Justice Thomas is sending is clear: The right to keep and carry a firearm for self-defense is inherent in the Constitution of the United States whether it is inside or outside one's home. To say anything else just isn't true.

Jeffrey Scott Shapiro is a former Washington, D.C., prosecutor who previously enforced the District's gun ban before it was overturned by the U.S. Supreme Court.