It Looks Like Justice Gorsuch is Good On Gun Rights. Very Good.

by Steve MacDonald

Concealed carry holsterBefore his nomination, there wasn’t much to go on when it came to Judge Gorsuch and guns, but that has changed. Eugene Volokh hints at the point here,

We now have more evidence, from his vote joining Justice Clarence Thomas’s dissent from denial of certiorari in Peruta v. California — he, like Thomas (and, before his death, Justice Antonin Scalia), seems to be a strong gun-rights supporter, indeed likely more so than some of the other conservative justices.

Professor Volokh was referring to this.

Had the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result. This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion.

As we explained in Heller, to “bear arms” means to “‘wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’” The most natural reading of this definition encompasses public carry. I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen. … “To speak of ‘bearing’ arms solely within one’s home not only would conflate ‘bearing’ with ‘keeping,’ in derogation of the [Heller] Court’s holding that the verbs codified distinct rights, but also would be awkward usage given the meaning assigned the terms by the Supreme Court[.]” …

The relevant history appears to support this understanding. The panel opinion below pointed to a wealth of cases and secondary sources from England, the founding era, the antebellum period, and Reconstruction, which together strongly suggest that the right to bear arms includes the right to bear arms in public in some manner. For example, in Nunn v. State (Ga. 1846) — a decision the Heller Court discussed extensively as illustrative of the proper understanding of the right — the Georgia Supreme Court struck down a ban on open carry although it upheld a ban on concealed carry. Other cases similarly suggest that, although some regulation of public carry is permissible, an effective ban on all forms of public carry is not. See, e.g., State v. Reid (Ala. 1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).

Finally, the Second Amendment’s core purpose further supports the conclusion that the right to bear arms extends to public carry. The Court in Heller emphasized that “self-defense” is “the central component of the [Second Amendment] right itself.” This purpose is not limited only to the home, even though the need for self-defense may be “most acute” there. “Self-defense has to take place wherever the person happens to be,” and in some circumstances a person may be more vulnerable in a public place than in his own house. …

For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.

“The most natural reading of this definition encompasses public carry. I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”

He sounds like a keeper.

EDWARD PERUTA v. CALIFORNIA

Leave a Comment

  • Bryan W

    Fingers crossed on Gorsuch.

    Side note: We have Constitutional Carry now, right? I don’t see blood in the streets or shootouts in every town. Am I missing something?

    • OldNHMan

      Obviously you haven’t been paying attention to the anti-gun propagandists. How could you possibly have missed all the bleeding bodies lying on the streets throughout our state or the showdowns on the main streets of our towns? Can’t you smell the odor of cordite whenever you walk down our streets?

      Wassa madder wit’ you? [/sarc]

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